What are the Laws for Building a Granny Flat, Accessory Dwelling Unit (“ADU”) or Junior Accessory Dwelling Unit (“JADU”) on my Property?

As home prices rise, more people are turning to Granny Flats, ADUs, or JADUs for affordable, convenient housing in growing cities. A knowledgeable HOA attorney can help you better understand California law regarding these structures.

Effective January 1, 2020, Civil Code Section 4751 now prohibits homeowners associations (otherwise known as HOAs), from prohibiting or “unreasonably” restricting the construction or use of an ADU or JADU for single-family residential homes. However, this new law does not apply to condominium communities. Therefore, HOAs for condominiums are may still prohibit homeowners from constructing an ADU or JADU. Consulting a real estate attorney on the specific rules of your HOA can help prevent costly HOA disputes.

Frequently, homeowners want to add an Accessory Dwelling Units (“ADUs”, or “granny flats”) or Junior Accessory Dwelling Units (“JADU”) to their property. These structures are additional living units that are on the same lot as a primary dwelling unit. Adding ADUs and JADUs may desirable for a homeowner, mainly because it adds square footage to the property and serves as an additional living unit that may provide housing for a tenant or other persons.

Previously, HOAs and local governing agencies had the authority to prevent homeowners from constructing these types of units. However, Assembly Bill 1482 was passed in an effort to boost affordable housing that would prevent HOAs from imposing restrictions on the construction and use of these types of units.

What is an Accessory Dwelling Unit (“ADU”)?

An ADU, commonly referred to as a “granny flat”, is defined by California Government Code Section 65852.2(j)(1) and has the following qualities:

  • attached or detached residential dwelling unit
  • located on the same legal lot as the proposed or existing single-family residence
  • provides complete independent living facilities for one or more persons (permanent provisions for living, sleeping, eating, cooking, and sanitation)

ADUs are usually constructed as detached structures in a property’s backyard or are converted from existing structures such as a pool house.  Homeowners can convert garages, carports into attached ADUs. Finally, even a manufactured or mobile home is included in the definition of an ADU so long as it is on the homeowner’s separate property.

What is a Junior Accessory Dwelling Unit (“JADU”)?

California Government Code Section 65852.22 defines a JADU to have the following qualities:

  • a unit that is contained entirely within a proposed or existing primary single-family structure
  • must not exceed five hundred (500) square feet
  • must include a separate entrance from the main entrance to the primary dwelling
  • provides cooking facilities

Unlike an ADU, a JADU is not required to provide a separate sanitization/bathroom area. Instead, a JADU may share sanitation facilities with the primary dwelling.

An HOA can NOT prevent the construction of a granny flat, Accessory Dwelling Unit (“ADU”) or Junior Accessory Dwelling Unit (“JADU”).

As of January 1, 2020, Civil Code Section 4751 provides the following:

(a) Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of any interest in a planned development, and any provision of a governing document, that either effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit on a lot zoned for single-family residential use that meets the requirements of Section 65852.2 or 65852.22 of the Government Code, is void and unenforceable.

Accordingly, any provisions in the HOA’s governing documents, including their CC&Rs, rules and regulations will be superseded by Civil Code Section 4751 and be invalid and unenforceable.  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 will no longer provide grounds for prohibiting the conversion of a garage to an ADU.

Can I Rent a Granny Flat or ADU?

Yes, to a certain extent. Civil Code Section 4751 was adopted with the legislative intent to allow ADUs to be rented for a period of at least thirty (30) days. A period of less than thirty (30) days is considered a short-term or transient rental and is usually prohibited by HOAs, as well as by most municipal codes. If an HOA wants to impose a rental restriction, it must impose the same requirements to both the primary dwelling and the ADU.

Can ADUs Be Sold Separately from the Primary Dwelling?

No, with exceptions.  Generally, an ADU may never be sold separately from the primary house.  However, some counties may allow a very specific exception that allows the sale or conveyance of the two structures separately:

  • Both the ADU and primary dwelling must be developed/built by a qualified non-profit corporation
  • Must be sold to qualified low-income buyers
  • The purpose of the sale must be for owner-occupancy only
  • buyers of both dwellings must enter into a recorded tenancy in common agreement with provisions that ensure that:
    • property will be preserved as low-income housing and
    • will be owner-occupied.

How Big Can a Granny Flat, ADU or JADU Be?

JADUs can be a maximum of five hundred (500) square feet.

Local agencies must allow ADUs to be at least eight hundred (800) square feet, with a height of at least sixteen (16) feet, with side and rear setbacks of four (4) feet.

As of January 1, 2020, local agencies are prohibited from establishing a minimum square footage requirements, if such a requirement would efficiency unit.

Local agencies may not establish a maximum square footage requiring ADUs to be less than eight hundred and fifty (850) square feet, or one thousand (1,000) square feet for ADUs that are comprised of more than one (1) bedroom.

Contact a Real Estate Attorney in Los Angeles, Orange County, San Diego, Riverside, Palm Springs, San Bernardino, & Silicon Valley

If you have questions about building a granny flat, accessory dwelling unit (“ADU”), or junior accessory dwelling unit (“JADU”), we highly recommend you speak with a real estate attorney in California. For a free consultation with the experienced HOA attorneys at Talkov Law, call us at (844) 4-TALKOV (825568) or contact us online.