QUESTION: A client told me that there are changes in the law making it easier to create accessory dwelling units in residential buildings, including in HOAs. She wants my help in determining what she can build. What are those changes and what do I tell my client?
ANSWER: Your client is correct that there will soon be major changes affecting the creation of Accessory Dwelling Units (“ADUs” or secondary units). The California Legislature has created several sweeping changes in this area of the law, many of which become effective January 1, 2020. You can provide general information, only; you cannot provide her with legal advice regarding what she can do.
According to the Californians for Homeownership (a homeownership advocacy entity created by the California Association of REALTORS®,) the significant changes in state law are as follows:
- Reduced Costs and Burdens for Developing ADUs:
- Cities must approve ADU applications within 60 days, without a hearing or discretionary review.
- By 2025, cities cannot require the owner to live at the property as a condition to permit construction of a new ADU.
- Cities cannot charge impact feesfor ADUs under 750 sq. ft; fees for larger ADUs are limited.
- Homeowners’ Associations cannot unreasonably restrict the construction of ADUs.
- ADUs can be developed at the same time as a primary unit, under most of the same rules.
- Cities must delay code enforcement against an ADU that is currently unlawful so as to allow the Owner to get it legalized.
- For areas where development is county-controlled, all of these same rules apply to counties.
- ADUs Subject to Automatic Approval — NoLocal Limits: Cities must permit certain categories of ADUs without applying any local development standards (e.g., limits on lot size, unit size, parking, height, setbacks, landscaping, or aesthetics), if proposed on a lot developed with one single-family home. ADUs eligible for this automatic approval include:
- An ADU converted from existing space in the home or another structure (e.g., a garage), so long as the ADU can be accessed from the exterior and has setbacks sufficient for fire safety.
- A new detached ADU that is no larger than 800 sq. ft, has a maximum height of 16 feet, and has rear and side setbacks of 4 feet.
- Both of the above (creating two ADUs), if the converted ADU is smaller than 500 sq. ft. (referred to as a “junior ADU”).
- ADUs Subject to Ministerial Approval — MinimalLocal Limits: Even if not subject to automatic approval, a city generally must approve any attached or detached ADU under 1,200 sq. ft. unless the city adopts a new ADU ordinance setting local development standards for ADUs. If a city adopts such an ordinance, it must abide by the following restrictions:
- No minimum lot size requirements.
- No maximum unit size limit under 850 sq. ft. (or 1,000 sq. ft. for a two-bedroom ADU).
- No required replacement parking when a parking garage is converted into an ADU.No required parking for an ADU created through the conversion of existing space or located within a half-mile walking distance of a bus stop or transit station.
- If a city imposes a floor area ratio limitation or similar rule, the limit must be designed to allow for the development of at least one 800 sq. ft. attached or detached ADU on every lot.
- Adding Units to Multi-Family Properties: For the first time, the new laws allow units to be added to multi-family buildings. Cities must permit these types of units in multi-family buildings without applying any local development standards:
- New units within the existing non-living space of a building (e.g., storage rooms, basements, or garages). At least one unit and up to ¼ of the existing unit count may be created this way.
- Two new homes on the same lot as the multi-family building but detached from it, with 4-foot side and rear setbacks and a 16-foot maximum height.
NOTE: For Additional Information go to the Californians for Homeownership website at:
https://www.caforhomes.org/aduupdate
BEST PRACTICE TIPS
- Never give advice to a client or anyone else regarding the future use or development of any Property, or what could or could not be done to change the current use or configuration of a Property.
- If you decide to forward the above link to a client or prospective client, make sure that your email forwarding that link includes all of the following disclaimer language:
“The information in this link is a general summary of the law regarding creation of ADUs and should not be relied upon for any purpose or for any Property in any jurisdiction. I have not and will not verify or otherwise investigate that information. I strongly recommend that you consult with a qualified California real estate/land use attorney specializing in this area of the law if you have any specific questions or concerns about ADUs on any Property.”
- If a client or prospective client asks about the possibility of creating an ADU on any Property, your answer must always be the same:
“I am not an attorney and am not qualified to advise you on the legality of creating an ADU on any Property. I therefore recommend that you consult with a qualified California real estate/land use attorney specializing in this area of the law to provide advice on this topic.”
- Whenever possible, it is best to recommend attorneys who have experience working with the applicable, local Building Department and understand the local rules and practices. Knowledgeable attorneys can often get faster results because they know how that Department and its personnel work.
DO NOT SHARE WITH CLIENTS OR OTHER THIRD PARTIES. This Weekly Practice Tip is attorney-client privileged and for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright Broker Risk Management 2019 12/06/19