Jacquelyn E. Quinn, Esq., Author at Epsten, APC

Don’t Get Stuck with the Bill: Protect Your Association from Mechanics Liens

Jacquelyn E. Quinn, Esq.

Senior Attorney

858.527.0111
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Practices: Community Association Counsel | Commercial CID

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A mechanics lien is a legal claim that contractors, subcontractors, laborers, or material suppliers can file against a property when they are not paid for work or materials provided. Typically, any person who works on the property under a contract—whether directly with the association or through a general contractor (i.e., material supplier)—may have lien rights. In California, this right is protected by statute to ensure that those who contribute to property improvements are compensated.

For community associations, mechanics liens can pose serious risks, especially when work is performed on common areas. A lien on the common area can impact and even prevent owners from selling or refinancing their properties. Even if the association itself has paid its direct contractor, a material supplier who is unpaid may still assert a lien against the common area property or, in some cases, against the individual owner’s separate property. Because of this, an association must take proactive measures to prevent liens from arising and to minimize exposure if one is filed.

Steps an Association Can Take to Protect Itself from Mechanics Liens

1. 1. Use Written Contracts with Clear Payment Terms:
    Every project, no matter how small, should be governed by a written contract. The written contract should include provisions that specify payment schedules, require lien releases before payments are issued, and require the contractor to indemnify the association and its members against liens that may be filed. The contract should also require the contractor to comply with all lien laws and to ensure that all subcontractors and suppliers are timely paid.
  2. Obtain and Verify Preliminary Notices:
    Any party supplying labor or materials for a project that is not in direct contract with the association must first serve a preliminary notice (often within 20 days of starting work), which informs the property owner that the subcontractor or supplier has provided, or will provide, goods and services to the property and could file a lien claim if they are not paid. If subcontractors and suppliers don’t provide the association with the notice, they lose the right to file a lien.
    
    An association should carefully keep track of all preliminary notices received. Oftentimes, however, preliminary notices are sent to the address on file for the association with the Secretary of State, which may be management’s primary office, not on site at the association. Therefore, the association may also wish to request a list of all parties supplying labor or materials to the project from the contractor. This allows the association to verify that each listed entity receives payment or provides a lien release before issuing progress or final payment to the contractor.
  3. Require Conditional and Unconditional Lien Releases Before Making Any Payment:
    Never make a progress or final payment without first obtaining the appropriate lien release(s) from the contractor and all known subcontractors and suppliers.
  4. Use Joint Checks When Appropriate:
    Issuing joint checks that are made payable to both the general contractor and subcontractor or supplier when a contractor has not submitted an unconditional lien release can help ensure that funds reach all parties with lien rights and reduce the risk of unpaid claims that can result in liens being filed against association property.
  5. Monitor Contractor Bonding and Insurance:
    When hiring for large projects, associations might consider requiring contractors provide a payment bond. A payment bond ensures that subcontractors and suppliers are paid, even if the general contractor fails to do so.
  6. Act Promptly if a Lien is Recorded:
    If a lien is filed, an association should consult with its legal counsel immediately. In many cases, the lien can be released by recording a release bond or by demonstrating that proper payments and releases were made. Quick action can prevent escalation and protect the association and its members’ interests. Please also note that Civil Code Section 4620, requires an association to provide individual notice to its members within 60 days of being served with a claim of lien for work performed on the common area.

Mechanics liens can create significant financial and administrative burdens for associations, even when the association has acted in good faith. By maintaining strong contractual safeguards, tracking preliminary notices, and always obtaining applicable lien releases before issuing a payment, an association can greatly reduce the likelihood of a lien being filed against its property.

AB 130 Effective Immediately: Association Fines Capped at $100

Jacquelyn E. Quinn, Esq.

Senior Attorney

858.527.0111
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Practices: Community Association Counsel | Commercial CID

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California Assembly Bill 130, enacted on June 30, 2025, was revised at the very last minute this week to include amendments to Civil Code Sections 714.3, 5850 and 5855, which address association fines and enforcement procedures. The changes were added just days before the bill was signed into law without any committee hearings or opportunity for feedback. Leaving those most impacted by it, associations, with bad law and more questions than answers.

Most notably, AB 130 caps fines for many governing document violations at $100 per violation. The major takeaways regarding changes to permissible fines include:

- - Fines for violations are now capped at $100 per violation or a lesser amount adopted by fine schedule. As of June 30, 2025, associations are prohibited from imposing fines over $100 unless the exception discussed below applies.
  - The exception to the $100 fine cap is for violations that may result in an adverse health or safety impact on the common area or another association member’s property. To invoke this exception, a board must make a written finding at an open board meeting specifying the adverse health or safety impact of such violation. One way a board may satisfy this requirement is by making a finding in an open meeting a specific violation is adverse to health or safety on a violation by violation basis. Alternatively, an association could amend its rules to provide a general category of violations are adverse to health or safety (i.e., speeding, glass at the pool, off leash dogs in common areas) and therefore, subject to fines in excess of $100 without having to re-vote on the same violations over and over again.
  - Board shall not impose discipline on a member when the member cures the violation prior to the hearing and, in situations where curing the violation would take longer than the notice period before the hearing, when the member provides “financial commitment” to cure the violation. AB 130 does not define or provide an example of what a “financial commitment” is, but one option may be to impose a fine and hold it in abeyance subject to the member curing the violation by a reasonable deadline.
  - No late charges or interest may be charged for a fine.
  - Fines Imposed Prior to June 30, 2025, are not impacted. While AB 130 alters how associations may impose fines going forward, it does not invalidate previously imposed fines.

The new language of the statute also modifies part of the enforcement process, including:

- - If the board and owner are not in agreement following a hearing, the owner may request IDR. This is not a change to current law since an owner could always request IDR regarding an association dispute.
  - If the board and owner reach an agreement after the hearing, the board must prepare a written resolution to be signed by the board and the owner. The resolution will be judicially enforceable.
  - Written notice of a Board’s decision to impose disciplinary action is now due within 14 days of the hearing. Previously, notice within 15 days was required.

In summary, associations must immediately comply with AB 130, including generally no longer imposing fines in amounts more than $100 after June 30, 2025, unless a written finding is made by the Board at an open meeting the violation will have an adverse health or safety impact. AB 130 also does not necessarily require an association to suspend any enforcement actions until it amends its rules or fine policy, but boards will need to review and revise these policies to bring them into compliance with AB 130 before they are distributed with their annual policy statement. Associations should consult with their community association legal counsel regarding how to best integrate and comply with the new requirements of AB 130 for their specific community.

City of Carlsbad Bans Smoking in Multiunit Residences – Including Some of Yours!

Jacquelyn E. Quinn, Esq.

Senior Attorney

858.527.0111
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Practices: Community Association Counsel | Commercial CID

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The City of Carlsbad recently approved a new ordinance that, beginning January 1, 2025, will ban all smoking and vaping of any kind anywhere on the premises of a multiunit residential development located within the City of Carlsbad, including inside private dwellings, on private balconies, decks, garages, patios and common areas of a common interest development.

While it is certainly a win for residential communities desiring a smoke free environment, the ordinance requires associations subject to the ordinance to take specific steps and impose certain enforcement measures to ensure a level of compliance with this ordinance on or before January 1, 2025.

Applies to Multiunit Residential Developments in Carlsbad Only

This new ordinance applies only to multiunit residential development associations located within the City of Carlsbad.

What is a multiunit residential development? A “multiunit residential development” includes a property containing three or more units, including condominium and planned development common interest developments. Exceptions include mobile home parks, single-family homes designed as free-standing units which are separate (detached) from any other unit, and most single-family homes with an accessory dwelling unit and/or junior accessory dwelling unit on the lot.

Therefore, if your association includes units or single-family homes that are attached in any way (i.e., shared walls), they are likely subject to this ordinance.

What Type of Smoking is Banned?

The ordinance defines “smoking” as inhaling, exhaling, or burning, any tobacco, nicotine, cannabis or plant product, or other substance, whether natural or synthetic; (2) carrying any lighted, heated or activated tobacco, nicotine, marijuana, or plant product, or other substance, whether natural or synthetic, intended for inhalation; or (3) using an “electronic smoking device.”

An “electronic smoking device” is defined to include any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah.

Again, the ban is broad and appears to encompass all smoking and vaping of any kind.

Where is Smoking Banned?

- - In private dwellings and any associated exclusive-use area;
  - Private balconies;
  - Porches;
  - Decks;
  - Patios;
  - Common areas (except those designated as smoking areas).

Designated Smoking Areas

An association is not required to have or create designated smoking areas under this ordinance, but if it has, or wishes to create these areas, they must meet the following conditions:

- - An unenclosed area;
  - Be at least 25 feet away from any (1) doorway, window, opening or other vent into an enclosed area; (2) enclosed or unenclosed recreation area such as a tennis court, swimming pool and picnic area; or (3) enclosed or unenclosed area primarily used by children such as a playground;
  - Have a clearly marked perimeter;
  - Be identified by conspicuous signs showing it is a designated smoking area;
  - Have receptacles designed for and primarily used for disposal of smoking waste and that are maintained free of smoking-related litter, including cigarette butts; and
  - Must not overlap with any area in which smoking is otherwise prohibited by applicable law.

Actions for Associations to Take

Associations subject to this ordinance must do the following:

- - Notice: On or before January 1, 2025, provide written notice to all unit owners stating: (1) smoking is prohibited in units, including balconies, porches, decks or patios, as of January 1, 2025 and (2) smoking is prohibited in all common areas, expect in specifically designated smoking areas as of January 1, 2025.
  - Common Area Signage: On or before January 1, 2025, post and maintain clear and unambiguous “No Smoking” signs at entrances and exits of common areas, in sufficient numbers and locations, and in conspicuous places to make it obvious to a reasonable person that smoking is prohibited.
  - Violations: Beginning January 1, 2025, when an association has knowledge of a violation, it must take reasonable steps to investigate and enforce the regulation, including written notice to the resident of the violation, a request to cease and desist, potential action if the violation is not corrected (i.e., hearing, possible fines, enforcement of ordinance, etc.), and resources provided by the city to assist with nicotine dependence.
  - CC&R Amendments: Beginning January 1, 2025, any new or amended CC&Rs must include specific provisions prohibiting smoking in a unit or common areas, other than a designated smoking area. This does not create an obligation for an association to amend its CC&Rs, but any CC&Rs recorded, amended or restated by an association subject to this law after January 1, 2025 must include these provisions.
  - Ban Smoking Items in Common Areas: Beginning January 1, 2025, prohibit the presence of ashtrays, ashcans or other receptacles designed for or primarily used for disposal of smoking waste within the common area, unless area is designated as a smoking area.

It is also worth noting that unit owners who lease their unit have certain notice and lease requirements they must also comply with under this ordinance. However, the ordinance does not place any obligation on the association to ensure owners’ renting their units comply with these requirements.

Penalties for Failing to Comply

Some good news…if an association fully complies with the requirements placed on it under this ordinance, an owner or occupant will not have a private right of action against an association for any damages suffered due to another occupant’s breach of the smoking ban. The ordinance isn’t necessarily clear on what damages may be placed on an association that fails to comply with those requirements, but best not to find out.

If an occupant violates the ordinance, a court will award damages as follows:

- - - Actual damages suffered based on proof (i.e., medical expenses, lost rent, loss of use, etc.); or
    - Statutory damages in the amount of $500 per each violation per day of a continuing violation.
    - A court may also award exemplary damages when the violator is found guilty of oppression, fraud, malice, retaliation or conscious disregard for public health.

The ordinance allows for private enforcement. Meaning an association, landlords and occupants may take legal action against violators on behalf of the general public and themselves. Due to limited resources, it was stated that the city’s Police Department and Code Enforcement will not be responsible for enforcement. Contact us for more information.

I’d Like to Submit a Complaint. . .

Jacquelyn E. Quinn, Esq.

Senior Attorney

858.527.0111
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Practices: Community Association Counsel | Commercial CID

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One of the most important roles of a community association board is enforcement of its association’s governing documents, including CC&Rs, Bylaws, and Rules and Regulations. One way a board may become aware of alleged violations of the governing documents is through owner-submitted complaints. In some communities, reviewing owner-submitted complaints can be a full-time job and boards are often left wondering whether they have to address each and every complaint that is received. Boards might decide to streamline this process by establishing an owner complaint process, which details how an owner can submit an alleged violation and what information the board is expecting to accompany a submitted complaint. The following are a few items to consider including when creating an owner complaint process:

1. Written complaints only. It can be very difficult for a board to respond to a complaint when it’s not in writing, so requiring that all complaints be in writing is helpful.
2. No anonymous complaints. A board can make reasonable efforts to keep the identity of a complaining owner concealed, but anonymity cannot be guaranteed if an owner requests the board to act.
3. Details, details, details. Specify what information is expected to be included in the written complaint (i.e. the description of the alleged violation, the section of the CC&Rs or rules that owner alleges was violated, the name (if known), the address of alleged violator, the approximate date and time of the alleged violation, a photo of the alleged violation (if appropriate), names of any witness (if applicable), and any other information the complainant deems relevant for the board’s review).
4. Next Steps. Specify that the board has the right to elect to not take action on any complaint if, in the board’s sole discretion, there is insufficient evidence of a violation or it is determined that there has been no actionable conduct.
5. Follow up. Include that the complaining owner will not receive a follow up from the board about any action taken. Owner discipline is a confidential matter that other owners do not have a right to receive information about. A complaining owner may want to know what action the board took in response to their complaint, but they do not have a right to that information. If the board reveals such information, the association may find itself in hot water.

Having a comprehensive complaint process is beneficial as it helps manage expectations. The association’s expectations for owners regarding what information is expected when they submit a complaint, and an owner’s expectations about how their complaints will be handled. Such a process can also minimize the number of meritless complaints a board receives when complainants are required to identify this type information, and sometimes make them realize that the behavior they observed may not actually be prohibited. If you wish to discuss such a policy for your association please consult with your association’s management company and legal counsel.

Using Common Area Facilities for Private or Group Lessons

Jacquelyn E. Quinn, Esq.

Senior Attorney

858.527.0111
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Practices: Community Association Counsel | Commercial CID

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Many associations have common area amenities and facilities available to their residents and their guests. Such amenities and facilities may include fitness centers, pools, tennis, and other sport courts. From time to time, associations may receive a request from a resident to use a common area facility for private or group lessons with their personal instructors. While it might seem like a simple request and boards may be eager to allow such use of the common area facilities, associations should be aware of potential issues that can accompany such use. Whether a resident wishes to perfect their backstroke, backhand, or back swat, below are a few issues to consider when deliberating on whether to allow a resident to use a common area facility for private lessons with a personal instructor:

Liability: Since the association typically operates, manages, and controls the common area facilities, it is responsible for ensuring the facilities are properly maintained and safe for use. The association could be held liable for damage or injury to an instructor or participant during a private lesson caused by missed repairs or poor maintenance of the facilities. While similar concerns may arise when a resident chooses to use the common area facilities without an instructor, boards should consult their association’s legal counsel prior to allowing common area facilities to be used for private lessons.
Americans with Disabilities Act (“ADA”): Generally, an association’s common areas are not subject to the ADA unless they are open to the general public. Allowing non-residents to take group lessons at the association’s common area facilities may open the association to an argument that the facilities are “public accommodations” subject to the ADA. If the facilities are deemed to be subject to the ADA, an association could be required to make costly modifications to the facilities in order to comply with ADA requirements and an association could open itself to claims it violated the ADA.
Insurance & Licensing: Consult with the association’s qualified insurance expert on the risks and insurance implications of allowing private instruction in common area facilities. Does the association have adequate coverage in the event of any incidents? Will permitting this type of use of the common area facilities be considered a commercial use and affect the association’s coverage? Also, consider requiring any instructor to provide proof of any necessary licensing or certification, adequate liability insurance coverage, and requiring the association and management be named as an additional insured on the instructor’s policies.
Waivers/Releases: Consider requiring instructors and participants to sign agreements releasing the association, its directors, officers, management, etc. from liability arising from any injury that may occur in a common area facility during private lessons. If minors are receiving the lessons, a special waiver signed by a parent or guardian may also be necessary. Associations might also consider requiring an instructor to indemnify the association and board against any claims or lawsuits filed against them resulting from use of the common area facilities. While these types of agreements may not provide complete protection for associations in all situations, they may be better than nothing if the association allows certain private lessons.
Register/Rules: The right to use common area facilities is generally subject to reasonable rules and regulations adopted by the board. Boards may consider adopting reasonable rules and regulations regarding private lessons at common area facilities. Such rules might include requiring the insurance coverage and waivers discussed above, prohibiting instructors from using association facilities without a resident sponsor, requiring all participants be residents of the community, requiring reservations, and clarifying that private lessons may not hinder other residents and their guests from using the facilities at any time. Adopting reasonable rules pertaining to the use of common area facilities for private lessons gives a board something to enforce in the event a resident or resident’s instructor fails to comply.

In light of the potential for liability and other serious considerations discussed above, a board may find it prudent to simply prohibit owners from using the community’s common area facilities for certain private or group lessons. However, the decision is ultimately up to the board.

** This article was published on CAI-Coachella Valley – 2024 HOA Living Magazine (February Issue).

June 12th Sector Reopenings

By Jacquelyn E. Quinn, Esq.

Starting no sooner than June 12, 2020, and only upon the approval of your county‘s health officer, certain specific amenities in your community may be allowed to reopen. As of the date of this newsletter Riverside, San Diego, San Bernardino, Orange, Los Angeles and Kern Counties have approved additional reopening.

The State has issued guidelines to reopen fitness facilities (including pools) and outdoor recreational facilities. Community associations should only reopen those amenities specified in the State’s industry guidelines and should follow the applicable State guidelines, CDC guidelines, and any requirements/guidelines issued by your county and city.

CDC guidelines can be found here.
State guidelines can be found here.
San Diego County reopening guidelines can be found here.
Riverside County reopening guidelines can be found here and then scroll down to Toolkits and click on the box marked “Business.”
San Bernardino County reopening guidelines can be found here.
Orange County announced that it will reopen various sectors starting June 12, 2020, but as of the date of this newsletter no updated guidelines from Orange County have been posted. We anticipate that such guidelines will be posted here.
Los Angeles County announced that it will reopen various sectors starting June 12, 2020, but as of the date of this newsletter no updated guidelines from Los Angeles County have been posted. We anticipate that such guidelines will be posted here.
Kern County reopening guidelines can be found here.

This is a rapidly evolving topic, so boards and community managers should review these various governmental guidelines and talk to your association’s experts regarding implementation of these guidelines, e.g. HVAC professionals, janitorial/cleaning professionals, pool maintenance professionals, and legal counsel.

Additionally, please be aware that stagnant or standing water in a plumbing system may carry a risk of Legionnaires’ disease. Because common area amenities have been shut down, associations need to ensure that the water systems for these facilities are safe to use. You should review the CDC guidelines on this issue and follow the recommendations therein. Those CDC guidelines and training can be found here and here.

Reminder: The guidelines and other regulations change frequently. Be sure to keep up to date by checking the state and county websites on a regular basis and monitoring press alerts for new announcements.

Keywords: COVID-19, Coronavirus

San Diego County Guidance to Prepare for Re-Opening Association Pools When Permitted

By Jacquelyn E. Quinn, Esq.

San Diego County has not yet approved the re-opening of association pools, but the San Diego County Department of Environmental Health (DEH) has issued guidance in preparation for when pools are approved to re-open in Stage 3 of California’s Resilience Roadmap.

The guidelines can be found here: Public Swimming Operations During COVID-19 Guidance. According to the San Diego DEH these guidelines are consistent with the recommendations from the Centers for Disease Control and Prevention. Although, the guidelines could be modified by the California Department of Public Health when the State issues its guidance for re-opening pools.

The guidelines require increased disinfection and social distancing to protect pool facility users. Additionally, when pools are approved to re-open, your association will need to complete and post a copy of the County’s Safe Re-Opening Plan. Section E of the Safe Re-Opening Plan must be filled in with a description of the precautions your association has implemented to meet the measures in the Public Swimming Operations During COVID-19 Guidance.

Keywords: COVID-19, Coronavirus

Census Taker Access

By Jacquelyn E. Quinn, Esq.

It’s almost time for the 2020 Census to begin and associations may find census takers seeking access to the community or information regarding its occupants. Households will receive an invitation to respond to the 2020 Census between March 12-20. If a household does not respond to the 2020 Census, a census taker may follow up in person to collect their response. This will occur between May-July.

Then comes the question – must associations grant census takers access to the community to gather information from occupants? In short, yes.

13 U.S. Code Section 223 provides:

Whoever, being the owner, proprietor, manager, superintendent, or agent of any hotel, apartment house, boarding or lodging house, tenement, or other building, refuses or willfully neglects, when requested . . . to furnish the names of the occupants . . . or to give free ingress thereto and egress therefrom to any duly accredited [census taker] . . . shall be fined not more than $500.

An association is required to cooperate with census takers and cannot deny access into the community or giving the names of the occupants of the premises to any census taker who has shown proper identification. Failure to grant access to the community or furnish names of occupants requested by a census taker may result in substantial fines. The association may utilize whatever security measures it has in place (e.g., call resident and announce visitor). It will be up to an individual resident if they choose to open their door or not.

Associations can and should require evidence that the person is an official census taker. All census takers will be issued a census badge, which includes their name, photograph, Department of Commerce watermark, and an expiration date. Community Association Managers, patrol staff, or homeowners may ask to see a census taker’s badge. When in doubt, contact the nearest Regional Census Center to verify a census taker’s status. https://www.census.gov/about/regions/los-angeles/contact/identify.html

In order to comply with federal regulations, make sure your Community Association Managers, patrol staff, and gate and lobby attendants (if any) understand that access must be granted to census takers. They are allowed to knock on doors, ring doorbells, use call boxes, etc. Also, census takers are within their rights to ask associations to verify occupancy information (e.g., name and address). While you’re not expected to supply the information immediately, you should provide the requested name and address within a reasonable amount of time.

Please be aware that there is no requirement to provide any information to a census taker over the phone. If the association receives a phone call from a person claiming to be a census taker requesting occupancy information the association should not provide such information over the phone.

ADUs and Community Associations

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 took effect and prohibits 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 is 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 no longer provides grounds for prohibiting the conversion of a garage to an ADU.

The newest Civil Code section addressing ADUs and JADUs is Section 714.3, effective January 1, 2022, which also prohibits a non-CID planned development association from enforcing or imposing any provision in its governing documents that effectively prohibits or unreasonably restricts the construction or use of a properly-permitted ADU or JADU on a single family lot, including garage conversions. This appears to clean-up what was likely an oversight when Civil Code section 4751 was signed.

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 residence may also be converted to an ADU. In addition, an efficiency unit and a manufactured home (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 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.

Civil Code section 4751 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 and JADUs be rented?

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). Civil Code section 4741 also prohibits associations from prohibiting or unreasonably restricting the rental or leasing of any ADU or JADU. Associations with rental restrictions in its CC&Rs may impose the same rental restrictions on ADUs as long as those restrictions comply with section 4741.

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, under a new law effective January 1, 2022, local agencies must allow ADUs to be sold separately from the primary residence if the ADU or the primary dwelling was built or developed by a qualified non-profit corporation to be sold to qualified low-income families who participate in a special no-interest loan program. 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 of 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 specific inquires to determine the best solutions.

Local agencies are permitted to require one off-street 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, effective January 1, 2020, a local agency may not require that off-street parking lost by conversion of a garage or carport to an ADU or JADU be replaced.

If your association is located within the coastal zone it is possible the city’s local coastal program land use plan specifies parking requirements that differ from the government code and may require replacement of off-street parking lost by conversion of a garage or carport to ensure compliance with the provisions of the California Coast Act of 1976. Please review your city’s local ADU and JADU ordinances.

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.

AB 670: Accessory Dwelling Units (ADUs)

By Jacquelyn E. Quinn, Esq.

In recent years, the California Legislature has enacted several laws aimed at limiting the authority of local agencies to restrict accessory dwelling units (“ADUs”) and junior ADUs and streamlining the construction of ADUs and junior ADUs. Up until now, state law hasn’t addressed private restrictions on ADUs, such as in an association’s CC&Rs.

However, effective January 1, 2020, AB 670 adds section 4751 to the Common Interest Development Act that will prohibit associations from “unreasonably” restricting the construction of an ADU or junior ADU on a lot zoned for single-family residential use. (An association’s governing documents may continue to prohibit the construction of an ADU on a lot zoned for multi-family residential use. ) 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.

An ADU, sometimes referred to as mother-in-law units or granny flats, is a dwelling unit designed to serve as independent living quarters for at least one person. These dwelling units can be both attached and detached from the primary dwelling unit. A junior ADU is simply a unit that is 500 square feet in size or less, attached to the home, and has entrances from within the primary dwelling unit as well as from outside. A garage, carport or covered parking structure on the lot may also be converted to an ADU or junior ADU.

AB 670 makes any governing document void and unenforceable to the extent that it prohibits, or effectively prohibits, the construction or use of ADUs or junior ADUs. However, AB 670 does allow an association to place “reasonable restrictions” on ADUs and junior ADUs 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.

Although the new law does not define what sort of restrictions are “reasonable,” 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, leaving open the option for an association to adopt its own “reasonable restrictions” that may differ from 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.

There are bound to be disagreements over what constitutes a “reasonable restriction.” What constitutes a “reasonable restriction” for one association may not qualify as “reasonable” for another. Therefore, it is important for associations to conduct a diligent inquiry into what restrictions are truly reasonable for their community and members before adopting ADU guidelines for members to follow.

With respect to new provisions that local agencies must follow, sections 65852.2 and 65852.22 of the Government Code set forth specific standards that local agencies must follow in adopting local ordinances related to ADUs and junior ADUs. For instance, local ordinances cannot establish a maximum square footage requirement for an ADU that is less than 850 square feet, or 1,000 square feet if the ADU contains more than one bedroom. The local ordinance also cannot require a property owner who built an ADU to occupy the primary home on the property or the ADU. In addition, a local ordinance may not impose a requirement to replace lost parking spaces somewhere else on the property when converting a garage to an ADU. While an association may adopt ADU restrictions that differ from local regulations, it is important and helpful for associations to be aware of their city’s or county’s local ordinances concerning ADUs and the ways in which the association’s restrictions vary, as residents are bound to raise comparisons.