How to Best Govern Additional Dwelling Units in a Homeowners Association

By Andrew Parslow, Esq.

Due to the rising cost of housing and shortage of affordable homes, there has been a push for the California Legislature to encourage higher-density uses of properties in areas traditionally zoned for single-family use. This trend directly impacted homeowners associations through the passage of Civil Code §4751, which prohibits associations from unreasonably restricting the construction and implementation of Accessory Dwelling Units (“ADU”) and Junior Accessory Dwelling Units (“JDU” or “JADU”).

This statute and the rising costs of living in California led to an increase in the presence of ADUs and JDUs in deed-restricted communities in recent years, necessitating that property managers and community boards of directors be aware of these innovations and understand the impact they can have on an association. This article will discuss how ADUs and JDUs can interfere with restrictions in governing documents, what regulations an association can enforce on them, and what standards a structure has to meet to be considered a proper ADU or JDU.

What are ADUs and JDUs?

An Accessory Dwelling Unit is defined as an attached or detached residential unit located on the same legal lot as an existing single-family residence that provides complete independent living facilities for one or more persons. An example of this would be your standard detached mother-in-law suite.

A Junior Accessory Dwelling Unit is a residential unit contained entirely within an existing single-family residence that is no more than 500 square feet in size. The most common example of a JDU is a garage that has been converted so that it can be rented out to prospective tenants. Unlike an ADU, when renting out a JDU, the primary unit must be occupied by its owner.

ADUs and JDUs Interfering with CC&RS

California Civil Code §4751(a) prohibits the enforcement of any clause in an association’s governing documents that “effectively prohibits or unreasonably restricts” a homeowner from constructing or renting an ADU or JDU. Not only does this statute prevent an association from expressly prohibiting ADUs and JDUs, but it can also lead to fairly common clauses in governing documents being deemed unenforceable when applied to ADUs or JDUs.

One example of an otherwise valid restriction being impacted by ADUs and JDUs is the common requirement that a unit’s garage be used for vehicle storage purposes, prohibiting a unit owner from parking their vehicles outside their unit. If a member of an association wants to rent out their garage as a JDU, the association is required by law to allow them to park their vehicles on their driveway rather than the garage.

Impacted restrictions will still be valid as to other units in the association; however, an association should be cognizant of when such restrictions apply to ADUs and JDUs to avoid attempting to improperly enforce the governing documents and to address complaints from neighbors on why the rules do not appear to apply to their neighbors.

Permissible Restrictions for ADUs and JDUs

While the Civil Code limits what restrictions an association can impose on ADUs or JDUs, §4751(b) does allow for “reasonable restrictions.” Reasonable restrictions are defined as those that do not unreasonably increase their costs or effectively prohibit the construction of ADUs and JDUs.

As long as the restriction does not make the construction of ADUs and JDUs unreasonably costly, they must comply with the same restriction as all other structures in the association. This includes approval by the architectural committee and compliance with the standards imposed in the association’s architectural guidelines. For example, if an association’s architectural guidelines require that all roofs in the association have Spanish tile roofing, an owner’s application for a detached ADU can and should be denied if the proposed detached unit has slate roof tiles.

Most policies an association would want to enforce that do not specifically target ADUs or JDUs would fall under this category. What constitutes a “reasonable restriction” can be a point of contention when an association’s architectural committee rejects a proposed ADU or JDU. To remedy this, an association may want to consider a distinct section in their architectural guidelines outlining the standards that must be met for a structure intended for use as an ADU or JDU.

Ensuring the Association Contains Proper ADUs and JDUs

The protections granted to ADUs and JDUs under §4751(a) only apply to valid ADUs and JDUs. When a unit owner is seeking to circumvent restrictions in the governing documents or seeking approval from the architectural review committee to construct an ADU/JDU, boards of directors and managers should question if the additional unit constitutes a valid ADU or JDU.

Government Code §65852.2 lays out the requirements for ADUs and lists additional standards that can be imposed on a jurisdiction basis by local agencies. These requirements include a total floor area not to exceed 1,200 feet, that an attached ADU does not exceed 50% of the floor space of the original unit, and approval by a health officer if a private sewage disposal system is in use.

Government Code §65852.22 is stricter with the requirements for a JDU, which include a limitation of one per single-family residence, a requirement that they be located within the walls of a single-family residence and that they contain their own cooking facilities.

In summary, it is vital for managers, boards of directors, and architectural committees to understand the laws and regulations and to establish clear written guidelines pertaining to ADUs and JDUs in homeowners associations, as they are becoming increasingly common in today’s real estate market.

Andrew Parslow, Esq., is an attorney at Feldsott, Lee & Nichter in Laguna Hills. With over 50 years in business, the firm is one of the pioneers in association law in Southern California.