Prepare Now to Welcome the Accessory Dwelling Unit into your Community AssociationSep 13, 2020
By Matt D. Ober, Esq., CCAL
Proactive rule adoption and enforcement will ease the growing pains of ADU/JADUs in your community.
Formally termed the Accessory Dwelling Unit (ADU), this ever-popular form of housing is a legal and regulatory term for a secondary house that shares the building lot of a larger, primary house. The ADU is a self-contained housing unit that provides for living, sleeping, cooking, and sanitation. ADUs are either attached to or detached from the primary residence but provide independent living facilities for its occupant. The junior ADU “JADU” are no more than a 500 square foot residence in a single-family home with an entrance from the main dwelling unit and an entrance to the outside. The JADU may share a bathroom with the main residence.
The ADU is cloaked with the good intentions to address California’s extreme housing shortage and increasing housing density (and modeled after similar laws addressing solar energy systems, electric vehicle charging stations, drought tolerant plants and artificial turf). However, Civil Code Section 4751 Civil Code renders void or unenforceable any CC&Rs provision or deed restriction in a planned development that either effectively prohibits or unreasonably restricts the installation of an ADU or JADU on a lot. The Legislature’s original intent was to encourage construction of affordable accessory dwelling units that were owner occupied and used for rentals of 30 days or longer; however, such requirements did not make it into the final legislation.
A community can impose reasonable restrictions
Like similar laws aimed at forcing community associations to accept legislatively mandated modifications, Civil Code Section 4751, allows an association to enforce reasonable restrictions that do not unreasonably increase the cost to construct or effectively prohibit construction of an ADU or JADU. Any ADU or JADU must also meet the requirements of Government Codes 65852.2 and 65852.22 (regarding approval by local agencies and compliance with applicable building codes). However, one should note that these companion Government Code sections place significant restrictions on a local agency’s ability to impose restrictions or delay approval of accessory units on a Lot.
Many communities view this new law as unnecessary micromanagement of private planned residential communities that negatively impact an association’s ability to regulate such daily community burdens such as parking, traffic, noise, and other characteristics of overcrowded communities. Nevertheless, community associations are not powerless. Adopting sensible architectural standards, aesthetic guidelines, and construction requirements for ADUs and JADUs is essential – and perhaps the best way to welcome your new neighbor. Communities should also review existing rules on issues such as parking and facilities use to determine any adjustments regarding a potential increase in the number of residents or vehicles.
Unfortunately, the law does not address the extent to which an association can offset the burden of an ADU on the community, or how to absorb the financial impact of increased density. The law is silent on such issues. This leaves the community to speculate whether efforts to adopt rules to shift the burdens of increased density on the ADU owner will be subject to challenge as unreasonable.
New legislation aids the development and use of ADU/JADUs
It is clear that efforts continue to cement the ADU/JADU footprint in our communities. Assembly Bill 3182 (Ting) (which is awaiting the Governor’s signature) leaves little doubt that the gates of private residential community associations are wide open for the development of multiple residences, which was designed as a single-family residential lot. AB 3182 was initially aimed at preventing community associations from enforcing lease restrictions. While this law does prohibit lease restrictions that limit rentals to less than 25%, it adds Section 4741 to the Civil Code, which makes clear that an ADU/JADU is not considered a separate interest and that any separate interest that an owner as the occupant of the separate interests, the ADU or JADU shall not be considered occupied by a renter for purposes of the 25% rental restriction. Moreover, Civil Code 4741 clarifies that every lot can have both an ADU and a JADU. Finally, the most glaring indication of the law’s effort to promote ADUs/JADUs in our community is the amendment to Gov. Code 65852.2, mandating that any permit application filed with a local permitting agency shall be deemed approved if not acted on within 60 days.
Communities Should Be Proactive In Preparing For ADUs/JADUs
The best protection for any community concerned about the impact of ADUs/JADUs is to be proactive. Community associations should adopt ADU/JADU specific architectural rules addressing the aesthetic qualities and architectural elements that will be acceptable for your particular community’s design and aesthetic standards.
Additional topics community associations should consider addressing within their rules include:
- Consider how garage conversions will impact the availability of guest parking.
- Review landscape design standards to ensure that any ADU is designed and built to maintain consistent design standards and plant height restrictions. Make sure that an ADU application includes a landscape plan.
- Review Governing Documents to determine impact of landscape maintenance easement and drainage/erosion control on location and construction of ADU/JADU
- Consider placing limits on Lot access through driveways and entrances from alternative streets to control traffic flow and reduce impact on neighbors.
- Consider location of ADU/JADU within each lot and consider rules to limit the potential interference on neighboring Lot Owner’s privacy.
- Determine whether your covenants contain view restrictions and ensure that ADU/JADU design elements protect any view rights.
- Review existing rental rules to make sure they expressly include occupants of ADU/JADU dwellings.
- Be prepared to require any so-called prefab unit to be modified architecturally to be consistent with community design elements and aesthetics.
These are only a few examples of the impact these accessory dwelling units will have on community associations. As with any new laws that have the potential to significantly impact life in your community, anticipate these issues before they arise and spend time now educating your Owners on what is required before proceeding.
If you have any questions or we can be of further assistance, please contact us.