MANAGING CONFLICTS BETWEEN CC&RS AND STATE LAWS REGARDING ADUS

Nov 8

Storm on the Horizon? Managing Conflicts between CC&Rs and State Laws Regarding ADUs

In response to the housing crisis, California has emphasized the creation of affordable housing. Specifically, Senate Bill 330, deemed the “Housing Crisis act of 2019,” is designed to speed up housing construction in California by expediting the issuance of building permits, limiting fee increases on housing applications, and barring local governments from reducing the number of homes that can be built.

One of the ways the legislature has sought to increase affordable housing is by paving the way for more Accessory Dwelling Units (“ADU”). A number of bills have been introduced to reduce or eliminate barriers to ADUs development in what could bring tens of thousands of new ADUs to California. These bills include AB 68 (shortening timelines for ADU permit application decisions), SB 13 (prohibiting cities from conditioning approvals on the ADU being “owner-occupied” and eliminating fees on ADUs under 750 square feet), and AB 670 (preventing Homeowners Associations (“HOA”) from barring or unreasonably restricting the construction of ADU).

HOA are governed by Covenants, Conditions, and Restrictions (“CC&Rs”), which are the “rules” for HOAs and outline the requirements and limitations for properties located within the purview of the HOA. AB 670 enacts Davis-Stirling Common Interest Development Act § 4751, which deems provisions in CC&Rs that prohibit or unreasonably restrict the construction or use of ADU void and unenforceable.

This leaves the door open, however, for the HOAs to place “reasonable restrictions” on the construction of ADUs. Of course, the million-dollar question is what constitutes a “reasonable” versus an “unreasonable” restriction on construction? We anticipate this will be a hotly contested issue in courts over the next months and years. For now, however, HOA boards should closely inspect their governing documents, including CC&Rs, Bylaws, and any Architectural Guidelines, to ensure that there are not any outright prohibitions on the construction of ADU.

If you are an HOA member looking to construct an ADU or an HOA board with questions about your governing documents, feel free to reach out to the experienced and knowledgeable attorneys at Blake Law Firm to help guide you through this and all HOA related issues. Call us today at (858) 232-1290.

ADUCC&RsCC&RSB330SB 330AB68AB 68HOAHOAsDavis StirlingDavis Stirling ActADUs

Andrew Hall

Attorney Andrew Hall has over 10 years of experience handling complex real estate, business, and litigation matters throughout California and Washington. Andrew has vast experience with a wide range of clients – from residential to commercial property owners, landlords to tenants, real estate agents to brokers, title to escrow companies, hard money lenders to banking institutions. Andrew has handled cases ranging from administrative disputes, to unlawful detainers, to bankruptcies, to litigation, leaving his clients with the confidence that he can handle all of their needs from soup to nuts.

Andrew is committed to exploring efficient and cost-effective resolutions for his clients, whether that be through informal conversations with parties or attorneys, mediations, or settlement conferences. However, when litigation is inevitable, Andrew has counseled his clients through all stages of a dispute, including arbitrations, court trials, jury trials, and appeals at both the State and Federal Court levels.

Andrew resides in Carlsbad with his wife Lauren, son Nolan (7), and daughter Madeline (5). Andrew is actively involved with the Magdalena Ecke Family YMCA, where he can often be found on the weekends cheering Madeline on in any variety of youth sports or with Nolan participating in the Y’s Adventure Guides Program. Andrew enjoys playing golf, tennis, softball and good barbeque.

Andrew is committed to identifying his client’s goals and employing his big firm experience with small firm attention to help his clients achieve those goals.