Law Library | Dispute with Your HOA

Can HOA restrict my ADU construction?

Accessory Dwelling Units (“ADUs”, “mother-in-law suites,” or “granny units”) are additional living quarters on the same lot as a primary dwelling unit. In recent years, the California Legislature has enacted several laws that limit the authority of local agencies to restrict these units. Effective January 1, 2020, Civil Code section 4751 applies limits to what HOAs can and can’t do to restrict ADUs:

[a]ny covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of any interest in a planned development, and any provision of a governing document, 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.

In other words, HOA’s cannot prohibit or “unreasonably restrict” ADUs. This was a monumental step for the California legislature, and is certainly something that recalcitrant HOA’s will ignore or violate outright. However, just because HOAs are not allowed to prohibit ADUs, it doesn’t mean that they aren’t allowed to reasonably restrict them.

The second half of the code states that “[t]his section does apply to provisions that impose reasonable restrictions on accessory dwelling units or junior accessory dwelling units.” This loophole begs the question: what is a reasonable restriction? The legislature appears to have largely left it up to the courts. The only definition provided for “reasonable restriction” is that a restriction cannot “unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct” an ADU.

So, what exactly is an unreasonable increase in construction costs? $500? $5,000? $50,000? What is an effective prohibition? Is it simply a requirement that the ADU be moved? What happens if that move results in an increase in cost for construction (e.g., redirecting planned utility hookups, or modification of design pursuant to setback requirements)? What does it mean to “extinguish the ability otherwise construct” an ADU? What if the HOA’s restriction requires placement in a location that would prevent a neighbor from building an ADU? Or require a neighbor to incur increased costs for building an ADU? The unfortunate answer to all of these questions is, it depends. The facts and circumstances of any restriction will need to be tested against the layout of the community, the specific plans of the ADU, and a variety of other things.

If you are planning on constructing an ADU, or currently in a dispute regarding an ADU, you should call the experienced and aggressive HOA attorneys at Lubin Pham + Caplin LLP. While it is currently unclear what the exact definition of “reasonable restriction” is, Lubin Pham + Caplin’s attorneys will fight tooth and nail to get your ADU approved.