MONTHLY NEWSLETTERS | California Homeowners Association

ACCESSORY DWELLING UNITS

(AB 9182 ADU, Civil Code 4751 et al)

Homeowner Associations and New Law (Civil Code 4751)

Homeowner Association and Accessory Dwelling Units (ADU)

(Information taken from several attorneys, law firms and Civil Codes)

WHAT YOU SHOULD KNOW

Assembly Code 670, Section 4751 of the Common Interest Development Act. “It is the intent of the Legislature that an accessory dwelling unit ordinance adopted by a local agency has the effect of providing for the creation of accessory dwelling units and that provisions in this ordinance relating to matters including unit size, parking, fees, and other requirements, are not so arbitrary, excessive, or burdensome so as to unreasonably restrict the ability of homeowners to create accessory dwelling units in zones in which they are authorized by local ordinance.”

The Legislature Finds and Declares all of the following:

(1) Accessory dwelling units (ADU) are a valuable form of housing in California.

(2) Accessory dwelling units provide housing for family members, students, the elderly, in-home health care providers, the disabled, and others, at below market prices within existing neighborhoods.

(3) Homeowners who create accessory dwelling units benefit from added income, and an increased sense of security.

(4) Allowing accessory dwelling units in single-family or multifamily residential zones provides additional rental housing stock in California.

(5) California faces a severe housing crisis.

(6) The state is falling far short of meeting current and future housing demand with serious consequences for the state’s economy, our ability to build green infill consistent with state greenhouse gas reduction goals, and the well-being of our citizens, particularly lower and middle-income earners.

(7) Accessory dwelling units offer lower cost housing to meet the needs of existing and future residents within existing neighborhoods, while respecting architectural character.

(8) Accessory dwelling units are, therefore, an essential component of California’s housing supply.

Section 1. It is the intent of the Legislature in enacting this act to encourage the construction of affordable accessory dwelling units and junior accessory dwelling units that are owner-occupied and that are used for rentals of terms longer than 30 days.

An “Accessory Dwelling Unit” (ADU) means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It includes permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is situated.

A “Junior Accessory Dwelling Unit” (JADU) means a unit that is no more than 500 square feet in size and contained entirely within a single-family residence. A JADU can include separate sanitation facilities, or may share sanitation facilities with the existing structure.

The intent of the Legislature in passing this bill is to encourage the construction of ADUs or junior ADUs that are either owner-occupied or are used for rentals for longer than thirty (30) days.

Who Can Add an Accessory Dwelling?

If your lot is zoned for single-family residential use, you can now build and rent out an ADU on your property even if your Homeowners Association restricts or prohibits it. There are also many ways to add an ADU that can fit your situation.

One misconception many homeowners have is that they need their neighbors’ permission to add an ADU or that they need a large plot of land. But, this isn’t usually the case.

The Code, however, allows an association to place “reasonable restrictions” on ADUs and junior ADUs on a lot zoned for single-family residential use in common interest developments, as long as the restrictions do not discourage or effectively prohibit ADU or junior ADU construction or unreasonably increase the cost to construct them. (An association’s governing documents may continue to prohibit the construction of an ADU on a lot zoned for multi-family residential use.)

It would appear that many homeowners have the right to build an ADU, this may also mean converting a basement or an attic, building an addition onto the main home, remodeling an existing space or adding a cottage to the backyard. It could be a playroom or an apartment. There could be many possibilities.” And this bill could consider a permit application for the creation of an accessory dwelling unit (ADU) or junior accessory dwelling unit approved if the local agency has not acted upon the applicants completed request within 60 days.

What is more, ADUs can be as small as 250 square feet for a small room, a one-bedroom cottage may be built into as small as 450 square feet. A cozy two-bedroom may be as small as 650-700 square feet.

What Affect an ADU May Have on HOA Communities.

Increased Parking. When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, local agencies cannot require that those off-street parking spaces be replaced. In other words, parking is pushed to the streets. In addition, if owners want to create parking additional on their lots, the bill allows for parking in setback areas. That means more vehicles can be parked on a lot and parked closer to neighboring houses.

Setback Requirements. Association setback requirements that would prevent the construction of backyard ADUs will be voided. Setbacks will be reduced to "no more than four feet from the side and rear lot lines."

View Restrictions. The bill does not address view restrictions. Can an association block the construction of ADUs that violate view restrictions? The bill's broad language striking down any restrictions that prevent the construction of ADUs arguably includes view restrictions. Litigation will likely erupt over this issue.

Owner Occupancy. The bill allows local agencies to impose a requirement that an owner occupy either the primary dwelling or the ADU. Accordingly, associations should be able to adopt the restriction as well.

Civil Code Section 4741 Rental Period. The bill allows local agencies to impose a restriction that ADUs be rented for terms longer than 30 days. That means associations should include ADU rental restrictions in their rules even if no such restriction is found in their CC&Rs.

Property Values. Higher density created by ADUs means additional vehicles on streets. In addition to parking problems and rules enforcement issues, the influx of ADU renters will burden amenities such as pools, clubhouses, tennis courts, etc. This could change neighborhood aesthetics and could drive down property values.

Civil Code §4740. Limitation on Rental Prohibitions.

(a) An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in that common interest development to a renter, lessee, or tenant unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to their separate interest.

(b) For purposes of this section, the right to rent or lease the separate interest of an owner shall not be deemed to have terminated if the transfer by the owner of all or part of the separate interest meets at least one of the following conditions:

(1) Pursuant to Section 62 or 480.3 of the Revenue and Taxation Code, the transfer is exempt, for purposes of reassessment by the county tax assessor.

(2) Pursuant to subdivision (b) of, solely with respect to probate transfers, or subdivision (e), (f), or (g) of, Section 1102.2, the transfer is exempt from the requirements to prepare and deliver a Real Estate Transfer Disclosure Statement, as set forth in Section 1102.6.

(c) Prior to renting or leasing their separate interest as provided by this section, an owner shall provide the association verification of the date the owner acquired title to the separate interest and the name and contact information of the prospective tenant or lessee or the prospective tenant’s or lessee’s representative.

(d) Nothing in this section shall be deemed to revise, alter, or otherwise affect the voting process by which a common interest development adopts or amends its governing documents.

Section 4741 Is Added to The Civil Code, To Read:

(a) An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits, has the effect of prohibiting, or unreasonably restricts the rental or leasing of any of the separate interests, accessory dwelling units, or junior accessory dwelling units in that common interest development to a renter, lessee, or tenant.

(b) A common interest development shall not adopt or enforce a provision in a governing document or amendment to a governing document that restricts the rental or lease of separate interests within a common interest to less than 25 percent of the separate interests. Nothing in this subdivision prohibits a common interest development from adopting or enforcing a provision authorizing a higher percentage of separate interests to be rented or leased.

(c) This section does not prohibit a common interest development from adopting and enforcing a provision in a governing document that prohibits transient or short-term rental of a separate property interest for a period of 30 days or less.

(d) For purposes of this section, an accessory dwelling unit or junior accessory dwelling unit shall not be construed as a separate interest.

(e) For purposes of this section, a separate interest shall not be counted as occupied by a renter if the separate interest, or the accessory dwelling unit or junior accessory dwelling unit of the separate interest, is occupied by the owner.

(f) A common interest development shall comply with the prohibition on rental restrictions specified in this section on and after January 1, 2021, regardless of whether the common interest development has revised their governing documents to comply with this section. However, a common interest development shall amend their governing documents to conform to the requirements of this section no later than December 31, 2021.

(g) A common interest development that willfully violates this section shall be liable to the applicant or other party for actual damages, and shall pay a civil penalty to the applicant or other party in an amount not to exceed one thousand dollars ($1,000).

(h) In accordance with Section 4740, this section does not change the right of an owner of a separate interest who acquired title to their separate interest before the effective date of this section to rent or lease their property.

FOR COMPLETE UNDERSTANDING AND THE AFFECTS OF THIS LEGISLATION GO TO CALIFORNIA CIVIL CODES.