Zoning & Land Use  ·  October 10, 2026

Can Your HOA Stop You From Building an ADU in California?

The short answer

Mostly, no. Civil Code section 4751 makes a governing-document provision void and unenforceable if it "either effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit" on a qualifying lot. By its terms, a declaration that bans second dwellings outright is void as applied to an ADU that meets the state standards.

But three things are true at the same time, and the second and third do most of the work.

Reasonable restrictions survive. Section 4751(b) carves them out, and the definition is narrower than it sounds. An association keeps real architectural authority.

The fee rule is in a different statute. The sentence that reasonable restrictions "shall not include any fees or other financial requirements" does not appear in section 4751. It appears in Civil Code section 714.3.

Section 4751 gives you no remedy of its own. It voids the restriction. It does not award you damages, penalties or fees. Its rental-side neighbor, section 4741, does.

And the statute number that carried the underlying ADU rules for years was repealed more than two years ago.

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Can my HOA prohibit an ADU in California?

Not if the unit meets the state standards and the restriction is not a reasonable one. Three steps get you there, and the first is about the Government Code rather than your CC&Rs.

Which ADU statute applies after the 2024 recodification

Government Code section 65852.2 was, for years, the ADU statute. It was repealed by SB 477 (Stats. 2024, ch. 7), section 12, and the ADU provisions were moved into a new Chapter 13 of Division 1 of Title 7 of the Government Code, beginning at section 66310. SB 477 was an urgency statute, so the move took effect the day it was filed: March 25, 2024.

The chapter is organized in articles, and the division matters because both covenant statutes cross-reference it by article:

• Article 2, sections 66314 to 66331 — accessory dwelling unit approvals.
• Article 3, sections 66333 to 66339.5 — junior accessory dwelling units.
• Article 4, sections 66340 to 66342 — accessory dwelling unit sales.

One inference to avoid. The repeal relocated the ADU provisions; it did not by itself delete them. A local ADU ordinance is not void merely because the Government Code section it cites was renumbered, and whether any particular rule changed in substance with the move is a question to answer provision by provision rather than from the fact of the repeal. What the repeal reliably tells you is where to look.

That matters here because section 4751 voids a covenant only as to an ADU "that meets the requirements of Article 2 (commencing with Section 66314) or Article 3 (commencing with Section 66333)." The statute protects compliant units. An ADU that does not meet those requirements gets no protection from section 4751 at all, and your association's restriction stands against it.

So the first question in any dispute is not what the CC&Rs say. It is whether the proposed unit actually complies with Article 2 or Article 3.

Article 2 approvals are ministerial, which means the local agency is on a statutory clock from the moment the application is complete. If the city simply does not act, that is a separate problem with its own remedies — see what to do when a city slow-walks a permit.

What section 4751 does, and what it does not do

The operative language, in full:

"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 Article 2 … or Article 3 … is void and unenforceable."

Four limits are built into that sentence.

It reaches planned developments. Section 4751 sits in the Davis-Stirling Common Interest Development Act, and its first clause is expressly about instruments affecting an interest "in a planned development."

It reaches a lot zoned for single-family residential use. Effective January 1, 2027, AB 956 changes that phrase to "zoned to allow single-family residential use" in both section 4751 and section 714.3 — a small edit with real consequences for lots carrying mixed or overlay zoning that permits single-family use among others.

It requires compliance with Article 2 or Article 3, as above.

And it voids the restriction. That is the entire remedy this section supplies: there is no damages provision, no penalty, and no fee-shifting clause inside section 4751 itself. Whether fees are available at all in a given dispute is a separate question answered by the Davis-Stirling Act's general enforcement provision, Civil Code section 5975(c), which awards fees to the prevailing party in an action to enforce the governing documents — and runs to whichever side that is.

The "reasonable restrictions" carve-out

Subdivision (b) is where associations litigate:

"This section does not apply to provisions that impose reasonable restrictions on accessory dwelling units or junior accessory dwelling units. For purposes of this subdivision, '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 Article 2 … or Article 3 …"

Read it as a three-part test stated in the negative. A restriction is reasonable unless it does one of three things to an Article 2 or Article 3 compliant unit: unreasonably increases the cost to construct it, effectively prohibits its construction, or extinguishes the ability to otherwise construct it. Each branch is measured against a compliant unit, not against whatever design the owner would prefer.

Note what the three branches do not cover. A restriction that is merely inconvenient, slow, aesthetically fussy, or expensive in some ordinary degree does not fall within any of them, so it stays on the reasonable side of the line and remains enforceable. The adverb "unreasonably" is doing the work in the first branch, and the second and third branches are near-absolute language. An association that requires a particular roof pitch, a stucco finish matching the main house, or submission through its architectural committee is on the stronger side of the carve-out. An association that requires a $40,000 "impact contribution" before it will review the plans is vulnerable to the argument that the requirement unreasonably increases the cost to construct.

No published California decision has yet construed subdivision (b), so the argument is made on the text.

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Can my HOA charge a fee or stop me renting out my ADU?

These are two separate questions, and each is governed by a different statute than the build question.

Where the fee rule actually lives

Civil Code section 714.3 is the non-Davis-Stirling companion statute. It voids the same kind of covenant, but it reaches "any interest in real property" — recorded CC&Rs and deed restrictions generally, not only planned developments. Its subdivision (b) carries the identical "reasonable restrictions" definition, and then adds one more sentence that section 4751 does not have:

"'Reasonable restrictions' shall not include any fees or other financial requirements."

That sentence was added by AB 130 (Stats. 2025, ch. 22), effective June 30, 2025. AB 956 amended both sections in September 2026 and still did not add it to section 4751.

The practical consequence runs in the owner's favor. Section 714.3 reaches covenants affecting any interest in real property, which on its face includes a lot inside a planned development, so an owner facing an ADU review fee should consider whether the flat sentence in section 714.3 is available in addition to the cost-based argument under section 4751. Where only section 4751 applies, the fee has to be attacked on its own terms, by showing that it unreasonably increases the cost to construct. Which statute, or both, governs a particular instrument is a question to resolve from the recorded document before the argument is framed. The distinction is checkable in a minute and it changes which argument an owner has.

Renting the unit: section 4741

If the dispute is really about renting the unit rather than building it, Civil Code section 4741 is the better statute, for three reasons.

It provides that an owner shall not be subject to a governing-document provision that prohibits or unreasonably restricts the rental or leasing of a separate interest, an accessory dwelling unit, or a junior accessory dwelling unit.

It provides that an ADU or JADU "shall not be construed as a separate interest," so the unit does not count against the rental cap. An association may not set that cap lower than 25 percent of the separate interests, and an ADU or JADU is not one of them. A separate interest is also not counted as renter-occupied where the owner occupies either the residence or its ADU.

And unlike section 4751, it has teeth: a common interest development that willfully violates section 4741 "shall be liable to the applicant or other party for actual damages, and shall pay a civil penalty to the applicant or other party in an amount not to exceed one thousand dollars ($1,000)." Willfulness is an element, not an afterthought.

Section 4741 preserves an association's power to prohibit transient rentals of 30 days or less. Where association authority ends and municipal short-term-rental regulation begins is a related question the Fourth District took up this year under section 4740, in a decision for which a petition for review is now pending in the California Supreme Court — we cover that in section 4740 and short-term rental ordinances.

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What changes for ADUs on January 1, 2027?

Two bills signed on September 29, 2026 reshape the arithmetic. Neither carries an urgency clause, so both take effect January 1, 2027 under the ordinary rule in article IV, section 8(c) of the California Constitution.

AB 956 — a second detached ADU

AB 956 (Stats. 2026, ch. 791) amends Government Code section 66323, the section listing what a local agency must ministerially approve regardless of its own ordinance. The key change is to paragraph (a)(2), which becomes:

"Two detached, new construction, accessory dwelling units that do not exceed four-foot side and rear yard setbacks for a lot with a proposed or existing single-family dwelling."

The conditions a local agency may impose are stated per unit — a floor area limit of not more than 800 square feet of livable space, and the height limits cross-referenced to section 66321. So the entitlement is two units, each separately subject to those caps, not a single 1,600-square-foot allowance.

There is a trade-off, and it is new. AB 956 adds a subdivision providing that a local agency is not required to ministerially approve a junior accessory dwelling unit on a lot where two detached ADUs have been built under paragraph (a)(2). An owner choosing the second detached unit may be giving up the JADU.

A detached unit sited at a four-foot setback also leaves very little margin, and a boundary that was never surveyed is where that margin disappears. Before siting a second detached ADU near a side or rear line, read how long you have to sue over an encroachment — the cost of discovering the line after the slab is poured runs in both directions.

SB 1117 — the impact fee math

SB 1117 (Stats. 2026, ch. 809) amends Government Code section 66311.5. The zero-fee thresholds are unchanged: no impact fee at all on an ADU of 750 square feet or less of interior livable space, or a JADU of 500 square feet or less.

What changes is the calculation above the threshold. The prior rule charged a proportional fee computed against the whole unit. For lots with up to two ADUs, the fee must now be charged proportionately in relation to the square footage of the primary dwelling and "only on the area in excess of 750 square feet of interior livable space." For lots with more than two, only the proportional rule applies, computed against the whole unit.

One caution: "impact fee" as the section uses it expressly excludes connection fees and capacity charges. Those are governed by subdivision (b), which bars treating an ADU or JADU as a new residential use for connection-fee and capacity-charge purposes unless the unit was constructed with a new single-family dwelling.

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What can my HOA still control, and what should I do first?

Two places where the association retains real power, and a short order of operations.

Separate conveyance. Government Code section 66342 governs selling an ADU separately from the primary residence by condominiumizing it. Subdivision (g) provides that an owner within an existing planned development with an existing association "shall not record a condominium plan to create a common interest development … without the express written authorization by the existing association," and defines that authorization as board approval at a duly noticed meeting plus, if the governing documents require it, membership approval. If your plan is to build and then sell the ADU separately, the association's written authorization is a genuine precondition, and an association that withholds it can stop the sale.

Architectural standards that stay inside the carve-out. Discussed above.

Nowhere else. Outside section 66342, Chapter 13 does not address associations at all. The covenant rules live in the Civil Code, not in the Government Code ADU provisions.

What to do first

• Confirm the unit complies with Article 2 or Article 3. Both covenant statutes protect only a compliant unit. This is the threshold question, not the CC&Rs.
• Determine which covenant statute applies, or whether both do. That decides whether the flat fee rule in section 714.3 is available to you alongside the cost argument under section 4751.
• Read the restriction against the three branches of the carve-out. Cost, prohibition, extinguishment. An architectural standard is usually on the reasonable side; a financial precondition usually is not.
• Separate the build question from the rent question. If rental is the real dispute, section 4741 carries a remedy that section 4751 does not.
• If separate sale is the plan, get the association's written authorization first. Section 66342(g) is a real veto and it is better discovered before construction than after.
• Do not start construction while the dispute is open. A provision that is void is void whether you build now or after the question is resolved, and nothing in section 4751 is improved by proceeding over a written objection. An owner who builds and turns out to be wrong, because the unit does not meet Article 2 or Article 3 or because the restriction sits inside the reasonable-restrictions carve-out, faces an action to compel removal, assessments and fines under the governing documents, a fee exposure under section 5975(c) that runs to whichever side prevails, and a disclosure problem on resale. Resolve the authority question in writing, or by declaratory relief, before the foundation goes in.

Our zoning and land use practice handles these disputes. If the ADU question sits inside a co-ownership problem — a sibling, a partner or an inherited property where the owners disagree about building at all — that is a different analysis; see whether a co-ownership agreement can block a forced sale.

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Common questions

This article is general information about California law, not legal advice, and reading it does not create an attorney-client relationship. Statutes and case law change, and how they apply depends on the specific facts. Attorney advertising. Prior results do not guarantee similar outcomes. Robert B. Mobasseri, State Bar No. 193193, ROMO Law Group, Encino, California.