Can an HOA Prevent my ADU Build in California?November 15th, 2021
Granny flats have exploded in popularity recently, thanks to the potential income and additional space they offer homeowners. Unfortunately, the process of building these structures can be more difficult under the watchful eye of your HOA. One of the biggest questions looming over property owners is whether or not their HOA will prevent an ADU from being built on their property in Greater San Diego. The short answer is no, but read on to learn why.
Does my HOA allow ADUs?
Recent California legislation was enacted to prevent any Homeowners Association (HOA) from standing between you and your ADU. HOAs were previously able to restrict ADU construction on homeowner’s property. This could be an outright restriction written into a homeowner’s Covenants, Conditions & Restrictions (CC&Rs), or by making the process too costly and time-consuming to justify.
Now, the ADU law invalidates any current HOA restriction that effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit (ADU) or junior accessory dwelling unit (JADU) on a lot zoned for single-family residential. As such, your HOA cannot make the ADU process so challenging for you that you cannot build the unit.
What are the ADU laws that affect HOAs?
AB 670 governs how HOAs can restrict accessory dwelling units. There are a few details to understand, including:
Although ADUs cannot be restricted by an HOA, these associations are able to require certain modifications to your ADU. However, they are only allowed to impose reasonable restrictions. These restrictions should not add significant additional time or expense onto the ADU build, and the majority generally deal with the aesthetics of the unit. A common restriction HOAs will place onto an ADU is that the windows, stucco and roofing match those of the existing residence and adjacent homes within the development. We can of course provide an estimate for what these changes will cost to incorporate in your build.
Also, the HOA restrictions are voided if and only if the new structure meets the “minimum standards provisions” for a dwelling, as set forth under local zoning ordinances – which would include state laws for ADUs as well. So you would still be able to build up to an 850 sqft 1BR or a 1000 sqft 2BR+ at 4′ side and rear setbacks per state laws, regardless of the existing HOA restrictions.
Fortunately, these types of restrictions are common, and we’ve seen many scenarios play out so that we can guide you through the process.
Single-Family vs. Multi-Family
Another exception to the HOA rules mentioned above has to do with the type of residence you are looking to add an ADU onto. The legislation passed regarding HOAs primarily will affect single-family homes on property owned by the homeowner. However, homeowners who live in a multi-family home, such as a condominium where the HOA owns the common areas and property surrounding the home, may be prohibited from building an ADU adjacent to their unit.
The ADU laws are so new that we are often seeing cities interpret the code for the first time. For instance, legally you can build up to two ADUs on a multifamily parcel. However, it gets murky when condo owners collectively own the common spaces, such as open space that could potentially house an ADU. Building an ADU would likely require the various owners in the HOA to authorize the potential ADU in the common area, unless there is something else written in the Covenants, Conditions & Restrictions (CCRs).
How do you get an ADU approved with an HOA?
Your ADU will still need HOA approval, and you will need to understand any design requirements or restrictions. For instance, cities such as Poway and Rancho Santa Fe have requirements that the architectural features of the ADU must match the main house. We can quote out any upgrades this might entail, for instance upgrading to a tile roof or board and batten siding.
Luckily, the set of architectural plans that are submitted to the city for building approval will be the same set you submit to the HOA, which makes the whole process a bit more efficient. There are two ways of going about plan submission:
- Submit plans concurrently to your HOA and to the municipality. This approach does risk the HOA requesting changes that we then have to amend to match the city-submitted set. Most cities will require a number of revisions before a permit is issued, as well, which may also alter your HOA’s approval of your plans should the change throughout the process. These changes can draw out the build process quite a bit.
- Submit plans sequentially, first to the HOA then to the city. This approach would allow you to get feedback from the HOA and incorporate ahead of submission to the city. When going about approval sequentially, we can likely just submit the architectural plans and specifications, and not include the T24 and structural engineering the city will require, which can make the process less time consuming and more likely for positive feedback.
Our approach is to prepare our Feasibility Report, which includes a site plan, floor plan, and elevations, which includes callouts on materials to be used (typically to match existing house). In some cases this is sufficient for the HOA. In other cases, they may require full construction drawings. We usually advise the client to submit to the HOA and for permits concurrently, and address any design changes called out by the HOA during the plan revision process that occurs with the municipality.
The best way to go about this approval process is finalize as many selections as possible before submitting to the HOA, as they are unlikely to request any structural plans. If this changes at any point, we will be able to make these changes in design and will be sure to keep you in the loop throughout the process. It usually takes about 45 days for an HOA to review the submitted plans and provide feedback, which will already be factored into the building process.
What if I own a condo and want to build an ADU in my portion of the property?
These are very sticky situations where it’s legally murky as to what is allowed. Legally you can build up to two ADUs on a multifamily parcel. The question is whether the other condo owners are also OK with it, since they likely collectively own the common spaces. Building an ADU would likely require the various owners in the HOA to authorize the ADU in the common area, unless there is something else written in the Covenants, Conditions & Restrictions (CCRs).
Can an HOA require story poles?
We have seen some instances where the HOA has requested installation of story poles. In reality, there is not much that a complaint by a neighbor can do, as state regulation regarding ADUs means that they are allowed in HOAs. It’s really just a question of which route would be less costly: fighting the HOA legally (e.g. hiring an attorney) or simply installing the poles as requested. In most cases clients have gone ahead and installed the story poles, as it was the cheapest and least time-intensive path.
HOAs cannot reasonably prevent ADUs from being built
Your HOA cannot stand in the way of your accessory dwelling unit. Reasonable restrictions may be placed on your ADU, but your ability to build is currently protected by California law. Although you should anticipate minor changes, we will walk you through the necessary amendments to ensure your build goes smoothly and you are pleased with the end result. Schedule a call to get in touch and discuss your property specifics.