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HOAs vs. ADUs | Money and Dirt

California real estate and deed of trust disputes | courtroom war stories and lessons learned

HOAs vs. ADUs

Accessory dwelling units (ADUs) have become popular during the run up in California real estate values.

ADUs have been touted for several benefits, including increasing housing supply, creating affordable housing options, and supporting multi-generational households.

But ADUs have also faced stiff opposition on the grounds that they increase density, create problems with traffic and parking, and harm the overall neighborhood character.

The Covenants, Conditions, and Restrictions (CC&Rs) governing many subdivision Homeowner’s Associations (HOAs) impose restrictions on ADUs, and some ban ADUs altogether.  CC&Rs are recorded deed restrictions affecting title to property, and are normally enforceable in court.

California Assembly Bill 670, which became Civil Code section 4751 last year, changes that.

Section 4751 provides:

(a) Any covenant, restriction, or condition contained in any deed … that either effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit on a lot zoned for single-family residential use that meets the requirements of Section 65852.2 or 65852.22 of the Government Code, is void and unenforceable.

(b) This section does not apply to provisions that impose reasonable restrictions on accessory dwelling units or junior accessory dwelling units. For purposes of this subdivision, “reasonable restrictions” means restrictions that do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an accessory dwelling unit ….

If your HOA’s CC&Rs contain an outright ban on ADUs, that ban is now void under section 4751.  That might create a “free for all” for ADU development with no restrictions on height, appearance, or other considerations.

HOAs should re-evaluate their CC&Rs in light of section 4751 to ensure that appropriate, reasonable restrictions on ADUs are in place to preserve the desired neighborhood density and character.