Civil Code Section 4751 makes any provision in an HOA’s governing document that “effectively prohibits” or “unreasonably restricts” the construction or use of an accessory dwelling unit (an “ADU”) or a junior accessory dwelling (a “JADU”) on a lot that is zoned for single-family residential use is void and unenforceable under California law. (Civ. Code § 4751(a).)

Definitions of ADU and JADU

“Accessory Dwelling Unit” (ADU) means an attached or a detached residential dwelling unit which provides complete independent living facilities for one or more persons. It must include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family dwelling is situated. An ADU also includes the following (Gov. Code § 65852.2(i)(4).):

• • • An “efficiency unit,” as defined under the Section 17958.1 of the Health & Safety Code.  Efficiency units must have (a) living area of at least 150 square feet, (b) a kitchen sink, cooking appliance and refrigeration facilities, and (c) a separate bathroom containing a water closet, lavatory and bathtub or shower.
    • A manufactured home, as defined in Section 18007 of the Health & Safety Code.

“Junior Accessory Dwelling Unit” (JADU) means a unit that is no more than 500 square feet in size and contained entirely within an existing single-family structure. A JADU may include separate sanitation facilities, or may share sanitation facilities with the existing structure.  (Gov. Code § 65852.22(g)(1).)

Reasonable Restrictions by an HOA
Section 4751 does not apply to provisions of an HOA’s governing documents that impose “reasonable restrictions” on ADUs or JADUs.  “Reasonable restrictions” means restrictions that do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an accessory dwelling unit or junior accessory dwelling unit consistent with the provisions of Government Code Sections 65852.2 or 65852.22. (Civ. Code § 4751(b).)  The types of reasonable restrictions on ADUs and JADUs are set forth in Government Code Sections 65852.2 and 65852.22, respectively.  They generally include the following:

Reasonable Restrictions on ADUs (Gov. Code § 65852.2)

•  The ADU may be rented separate from the primary residence.
• The total area of floorspace of an ADU attached to the primary dwelling shall not exceed fifty percent (50%) of the existing primary dwelling area
• The total floorspace of aa detached ADU shall not exceed 1,200 square feet.
• Parking requirements for ADUs may be imposed but not exceed one parking space per unit or per bedroom, whichever is less.

Reasonable Restrictions on JADUs (Gov. Code § 65852.22)

• Limit the number of JADUs to one per lot.
• Require owner-occupancy in the single-family residence in which the JADU will be located. The owner may reside in either the remaining portion of the structure or the newly created JADU.
• Require the JADU to be constructed within the walls of the proposed or existing single-family residence.
• Require the JADU to include a separate entrance from the main entrance to the proposed or existing single-family residence.
• Require the JADU to include an efficiency kitchen, which must include a sink, cooking facility with appliances, a food preparation counter and storage cabinets.

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