New ADU and HOA laws in California

Highlights:
Lawmakers approve easier path to permitting, building ADUs


Homeowners now free to criticize their HOA on social media


HOAs must now allow owner-occupants to rent a spare bedroom in their home


Rule violation enforcement by HOA must be limited during declared emergencies

By Deborah Goonan, Independent American Communities deborahgoonan@gmail.com

Accessory Dwelling Units, changes to existing state law

California’s Governor recently signed a bill that makes it easier for homeowners to add additional living units on their lot, or attached to their home. SB-897 (Wieckowski) Accessory dwelling units: junior accessory dwelling units is now law. See Chapter 664.

The legislation contains several amendments to reduce costs and permitting obstacles for owners of single family homes or multifamily properties, who want to add or construct new Accessory Dwelling Units (ADUs) or Junior Accessory Dwelling Units (JADUs).

The bill is intended to continue efforts to increase housing supply through ”gentle density,” or, in other words, the addition of ”missing middle” housing types, such as duplexes, 3- and 4-family dwellings, townhomes, granny flats, and garage apartments. The law also facilitates the addition of Junior ADUs, living spaces attached to an existing dwelling. A JADU is typically a sleeping and cooking space in an existing dwelling, where the resident has both access to a bathroom facility in the main structure, and a separate entrance to their apartment from outside.

In general, ADU legislation seeks to create apartments or detached cottages that can serve as rental units, as age-in-place housing for retirees, or as independent living arrangements for extended family members in multigenerational housing. This kind of housing allows homeowners to either share living expenses with other family members, or to generate a modest rental income to offset housing costs. At the same time, a typical ADU supplies a tenant with more privacy and an affordable rent payment, compared to the majority of corporate-owned apartments in rental communities.

Reading the details of California law, as amended, it appears that proponents of ADUs and ”gentle density” housing appear to disfavor creation of new condominium units, as well as apartments that are used primarily as short-term rental units.

Who supported and who opposed SB-897?

For the reasons listed above, SB-897 was supported by 21 separate housing and advocacy organizations in the state, including AARP, Apartment Association of Greater Los Angeles, California Apartment Association, and California Building Industry Association, to name a few.

However, the bill was opposed by a dozen city and county governments, the California Association of Code Enforcement Officers, California Association of Realtors, California Building Officials, and Community Associations Institute – California Legislative Action Committee. Opponents complain about lack of ”local control” over housing occupancy limits, and building code officials worry about reductions in their authority to enforce certain safety and fire codes.

But state law still allows a local agency to impose objective health and safety building codes that apply to other small housing structures. For example, a building permit could be denied if, for some reason, a new ADU cannot access utility lines, or if setback requirements cannot be met.



Reading between the lines…

Although not mentioned in official legislative analyses, IAC thinks that CAI-CLAC had other, undisclosed reasons to oppose SB-897. For instance, CAI, a trade group with tens of thousands of of condo managers and attorneys, would probably prefer to allow primary dwelling owners the ability to sell off and condo-ize their ADUs, something that is not currently permitted under California law. And, think about it. ADUs provide alternative housing options, decreasing the supply of possible condo owners or renters in California.

Likewise, California Realtors — who often sell homes to real estate investors — probably oppose any future owner-occupancy requirements for ADU permits, and limitations on use of ADUs as short-term rentals. Current law allows local governments to require owner-occupancy for permits, starting in 2025, and permits local governments to prohibit the use of ADUs as short-term rental properties.

See the applicable provisions of Chapter 664 (my emphasis added):



Except as provided in Section 65852.26, the accessory dwelling unit may be rented separate from the primary residence, but may not be sold or otherwise conveyed separate from the primary residence.

8) (A) This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be used or imposed, except that, subject to subparagraphs (B) and (C), a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant.

(B) (i) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit before January 1, 2025.

(ii) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit that was permitted between January 1, 2020, and January 1, 2025.

(C) Notwithstanding subparagraphs (A) and (B), a local agency may require that an accessory dwelling unit be used for rentals of terms longer than 30 days.

Source: California State Legislative website

What’s new in Chapter 664?


Here’s a summary of key changes of SB-897, now incorporated into Chapter 664:

a) California law now clarifies that building and permit standards imposed on ADUs must be objective, not subjective.

b) A permitting agency must act by specifically approving or denying an
application for an ADU or JADU within 60 days of application, and must include a written explanation of any reasons for denial, including steps that must be taken to secure an approved permit.

c) New ADU permits won’t trigger an occupancy change, and a requirement for fire sprinklers to be installed in the proposed or existing primary dwelling.

d) The amendments streamline the ADU permit application process. For example, state law now requires permitting agencies to combine review of demolition of a garage with review of proposed ADU.

e) State law now increases the height limit allowance for ADUs to 18 or 25 feet, under certain circumstances — particularly when the primary dwelling is located within easy walking distance to public transit stops.

f) Overall, owners seeking to add or build an ADU will enjoy somewhat reduced burdens and obstacles. For example, a property owner won’t be required to create and/or replace off-street parking spaces, which often limits the available living space that can be constructed on an existing lot.

Some background on affordable, ADU housing legislation in California:

In 2016 SB 1069 (Wieckowski) Chapter 720, Statutes of 2016 and AB 2299 (Bloom) Chapter 735, Statutes of 2016 permitted accessory dwelling units (ADUs) by right on all residentially-zoned parcels in the state. By permitting an ADU as a second unit on all single-family lots, these laws effectively doubled their allowed density. Last year, SB 9 (Atkins) Chapter 162 Statutes of 2021 furthered this trend by making duplexes by right on single-family zoned properties.
These state laws have transformed ADUs from being less than one percent of permitted new construction before 2017 to now being approximately 10%, at over 9,600 completed units in 2022.1 The number of ADUs is expected to continue growing as the ADU construction and financing industry matures, which will help meet the market feasibility for ADUs that is estimated to be approximately 1.8 million units in California.

This bill makes multiple changes to ADU and JADU law intended to address identified issues and facilitate the development of more ADUs. These include expanding the space available to build ADUs and JADUs and/or reducing their cost. Proposed changes also include efforts to make it easier to permit unpermitted ADUs that were built before January 1, 2018.

SOURCES:
SB-897 See Assembly Analysis (8/26/2022) and Senate Analysis (8/31/2022)

In California, it’s now illegal for your HOA to censor your critical comments on social media.

New free speech, property rights protections for homeowners in HOA-governed communities

Chapter 858 of California law now incorporates AB-1410 (Rodriguez) Associations: declared emergency: protected uses.

The amendments offer three additional protections for homeowners in HOA-governed communities.


Relief from HOA violations during a declared state of emergency


First, state law now prohibits your HOA from enforcing covenants or restrictions during a declared state of emergency, when compliance with a particular rule is either impossible or unsafe. For example, during a flood, owners and residents may be unable to fully comply with parking restrictions or requirements to park in designated areas. Or a weather related emergency might make it unsafe for an owner to tackle outdoor maintenance such as keeping the lawn neat and tidy. In these cases, an HOA must refrain from enforcing restrictions, until the emergency declaration has expired.


HOAs cannot prohibit critical remarks posted on social media


Second, California law now makes it illegal for HOAs to prohibit the use of social media as a platform to discuss community issues, including posting complaints or criticisms against the HOA. Furthermore, an HOA cannot retaliate against its members for criticizing the board’s action, inaction, or decisions.

There is one important caveat: the HOA is not obligated to allow critical speech on the community’s official website. However, owners and residents are free to post elsewhere or set up their own social media groups (Such as Facebook or NextDoor) to discuss HOA politics. In fact, this is commonly done across the nation.

Key new provisions in Chapter 858 protecting free speech: (emphasis added)

SEC. 2. Section 4515 of the Civil Code is amended to read:
(a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.

(b) The governing documents, including bylaws and operating rules, shall not prohibit a member or resident of a common interest development from doing any of the following:

(6) (A) Using social media or other online resources to discuss any of the following, even if the content is critical of the association or its governance:(i) Development living.(ii) Association elections.(iii) Legislation.(iv) Election to public office.(v) The initiative, referendum, or recall processes.(vi) Any other issues of concern to members and residents.(B) This paragraph does not require an association to provide social media or other online resources to members.(C) This paragraph does not require an association to allow members to post content on the association’s internet website.

(e) An association shall not retaliate against a member or a resident for exercising any of the rights contained in this section.

Source: California Legislative Info website

Owner-occupants have the right to rent part of their home to a roommate

The third amendment protects an owner-occupant’s right to rent out a room or portion of their home. In decades past, it was very common for working adults to seek one or more roommates to help share the cost of living in a home or apartment. It wasn’t just an option for college students!

However, many HOAs have since enacted restrictions or rules that prohibit any non-family members from residing with a homeowner, or enforce rules against homeowners for renting out a spare bedroom to help defray the high cost of living.

In the midst of a severe housing affordability crisis, HOAs can no longer enforce such draconian rules. A win for homeowners in California HOA-governed communities!

Who supported and opposed AB 1410?

According to a Senate Legislative analysis, prior to the final vote on the Senate Floor, the California Center for Homeowners Association Law (CCHAL) supported AB 1410.

Community Associations Institute-California Legislative Action Committee (CAI-CLAC) and California Alliance for Retired Americans (CARA) opposed the bill.

An earlier draft of AB-1410 contained provisions requiring HOA board members to receive training in ethics, housing discrimination, and anti-harassment policies. CAI-CLAC opposed these requirements. (Source links here and here.) CCHAL also opposed requirements for HOA board members to sign a “Code of Conduct” pledge, which would have shifted potential legal liability from the HOA corporation to individual board members. Therefore, the Legislature removed these provisions from the bill over the summer.

The internet free speech provisions, however, were hotly debated.

CAI-CLAC argued that the First Amendment of the U.S. and California Constitutions do not require private HOA governing bodies to post member complaints on their official websites, and that non-HOA owned websites and social media platforms provide ample opportunities for HOA members and residents to speak their minds, so they can air the HOA’s dirty laundry elsewhere.

AB 1410 was then briefly amended to allow HOA board members to censor or redact comments on any website or social media site that it monitors. But CCHAL agued that these provisions would give HOAs too much power, and effectively undo free speech protections for homeowners.

As a result, the bill was amended again, in its current form, to allow an HOA to keep critical comments off of its official internet website, while prohibiting any HOA from retaliating against homeowners who make critical comments on a social media forum.


Deborah Goonan

is the creator of Independent American Communities (IAC), a Housing Consumer Education blog focusing on HOA governed Common Interest Developments.
IAC documents legal, social, and economic challenges — and explores solutions to problems — in U.S. HOA-governed common interest communities.

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