ADU Q&A after AB 670

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By Jacquelyn E. Quinn, Esq.

Can my association prohibit Accessory Dwelling Units (“ADU”) or Junior Accessory Dwelling Units (“JADU”) construction?

If your association is a planned development, no.

If your association is a condominium project, for now, yes.

On January 1, 2020, Civil Code section 4751 (a new provision of the Common Interest Development Act) will take effect and will prohibit planned development associations from effectively prohibiting or “unreasonably” restricting the construction or use of an ADU or JADU on a lot zoned for single-family residential use. By contrast, condominium associations are permitted to prohibit the construction of an ADU or JADU.

Therefore, any restriction in the CC&Rs, rules and regulations, or any other governing document, of a planned development will be superseded by Section 4751.  For example, a requirement that garages must be used solely to park vehicles and may not be kept in a manner that interferes with the ability to park vehicles will no longer provide grounds for prohibiting the conversion of a garage to an ADU.

If you have any questions concerning whether your association is a planned development please contact your legal counsel.

What is an ADU?

An ADU is defined by California Government Code section 65852.2(j)(1) as an attached or detached residential dwelling unit located on the same legal lot as the proposed or existing single-family residence, which provides complete independent living facilities for one or more persons.  An ADU must have permanent provisions for living, sleeping, eating, cooking, and sanitation.

A detached ADU is most commonly a separately constructed structure in a back or side yard.  An attached ADU is often times an addition to the primary dwelling.  Garages, carports or existing accessory structures (e.g., pool houses or work sheds) located on the same legal lot as a single-family may also be converted to an ADU. In addition, an efficiency unit and a manufactured (i.e., mobile home) are also included in the definition of an ADU.

What is a JADU?

A JADU is defined by California Government Code section 65852.22 as a unit that is contained entirely within a proposed or existing primary single-family structure. A JADU must not exceed five hundred (500) square feet. In addition, a JADU must include a separate entrance from the main entrance to the primary dwelling.

A JADU must include an efficiency kitchen, including a cooking facility with appliances and food preparation counter and storage cabinets that are of reasonable size in relation to the size of the JADU.  A JADU may also include separate sanitation facilities (i.e., a bathroom), or may share sanitation facilities with the primary dwelling.

What sorts of restrictions can a Board enforce against ADU construction?

Civil Code section 4751 allows an association to place “reasonable restrictions” on ADUs and JADUs. For purposes of section 4751, a “reasonable restriction” is one that does not unreasonably increase the cost to construct an ADU or JADU, or effectively prohibit the construction of, or extinguish the ability to otherwise construct, an ADU or JADU consistent with Government Code sections 65852.2 or 65852.22.

The new law offers little guidance as to what sort of restrictions are “reasonable,” but the law does not require an association to follow the same exact standards that the city or county has adopted concerning ADUs or junior ADUs.  In our view, that leaves open the option for an association to adopt its own “reasonable restrictions” that may differ from or be more restrictive than those of local agencies.

Such “reasonable restrictions” may include requirements related to aesthetics and design of the new unit, submitting and receiving approval of an architectural application, size of the new unit, use of shared facilities in the community, and parking.

Can ADUs be rented?

Generally, yes.  The Legislature’s stated intent when adopting Section 4751 was to permit the rental of ADUs for a period of more than 30 days (e.g., no short-term rentals). Associations with rental restrictions in its CC&Rs may impose the same rental restrictions on ADUs. If an association does not currently have rental restriction in its CC&Rs it may not impose such rental restrictions on ADUs in the community without first amending its CC&Rs.

Also, effective January 1, 2020, local agencies may no longer impose a requirement that an ADU or primary dwelling be owner-occupied.  Therefore, a situation may arise where both the primary dwelling and ADU are occupied by non-owner residents. However, a requirement that either the primary dwelling or JADU be owner-occupied is still permitted.

Can ADUs be sold separately from the primary dwelling?

Generally, no.  Under the vast majority of circumstances, an ADU must never be sold separately from the primary dwelling.  However, local agencies may adopt an ordinance that allows a very limited and narrow exemption to this prohibition.  When a property (both ADU and primary dwelling) is built or developed by a qualified non-profit corporation to be sold to qualified low-income buyers for purposes of owner-occupancy only, a local agency may adopt an ordinance that allows the ADU to be sold or conveyed separately from the primary dwelling.  As a condition of the sale, the buyers of both dwellings must enter into a recorded tenancy in common agreement with provisions that ensure the property will be preserved as low-income housing and will be owner-occupied. This very limited exemption should not impact established communities.

What kind or size restrictions can be imposed on ADUs?

Local agencies may establish minimum and maximum unit size requirements for both attached and detached ADUs.  However, beginning January 1, 2020, local agencies may not establish a minimum square footage requirement that prohibits an efficiency unit or a maximum square footage requirement that is less than eight hundred and fifty (850) square feet, or one-thousand (1,000) square feet for an ADU that provides more than one (1) bedroom.

In addition, any other size requirement set by a local agency, (or size based up on a percentage of the primary dwelling, floor area ratio, open space, and minimum lot size) must allow for at least an eight hundred (800) square foot ADU that is at least sixteen (16) feet in height with four (4) foot side and rear year setbacks.

By definition, JADUs must not exceed five hundred (500) square feet.

What parking requirements may be imposed on ADUs?

Parking is a challenge for many associations even without ADU construction and may require request specific inquires to determine the best solutions.

Local agencies are permitted to require one parking space per ADU or per bedroom, whichever is less.  These spaces may be provided as tandem parking on a driveway.

However, a local agency may not impose parking requirements for an ADU when (1) the ADU is located with one-half mile walking distance of public transit; (2) the ADU is located within an architecturally and historically significant historic district; (3) the ADU is part of the primary residence or a permitted accessory structure; (4) on-street parking permits are required but not offered to the ADU occupant; and (5) a car share vehicle is located within one block of the ADU.

In addition, starting January 1, 2020, a local agency may not require that parking lost by conversion of a garage or carport to an ADU be replaced.

What are the next steps to manage ADU and JADU requests?

Section 4751 allows associations to adopt “reasonable restrictions” concerning ADU and JADU construction.  If your association is a planned development, we recommend you contact your legal counsel to discuss options and prepare ADU guidelines.  Once ADU guidelines have been prepared the Board will need to provide general notice of the proposed guidelines and allow for member comment pursuant to Civil Code section 4360.