Setbacks, HOAs and deed restrictions: can they stop your ADU?

Zoning is only one layer of rules. Your lot may also have a homeowners association, recorded covenants or easements that affect where and whether you can build. Here is how they interact.

Setbacks

A setback is the minimum distance a building must stay from a property line. ADU setbacks are often smaller than those for the main house.

In California, cities cannot use rules on lot coverage, floor area ratio, open space or front setbacks to block an ADU of at least 800 square feet with four-foot side and rear setbacks. The state handbook also says a city cannot require setbacks for converting an existing structure, or for a new structure built in the same location and size as an existing one.

In Washington, cities and counties in urban growth areas cannot hold ADUs to stricter setbacks than the main house, and cannot require a rear setback on an alley lot, unless the alley is plowed for snow. They must also allow conversions of existing structures even if those structures break current setback or lot coverage rules, according to the regional permit checklist.

In the California owner survey, 14 percent of owners named setbacks or height limits as a top challenge, and 26 percent named design constraints.

HOAs in California

California is unusually clear here. The state handbook says Civil Code sections 714.3 and 4751 make covenants, conditions and restrictions void and unenforceable if they effectively prohibit or unreasonably restrict building or using an ADU or JADU on a lot zoned for single-family homes.

An HOA can still apply some limited, objective standards, such as reasonable requirements for materials or architectural style. But those standards cannot be stricter than state ADU law, cannot unreasonably raise the cost and cannot include fees or other financial requirements. State law also protects renting out a separate interest ADU or JADU in a common interest development.

If your HOA in California blocks your ADU, the handbook encourages owners to contact their local agency.

HOAs and covenants elsewhere

Most states do not have California's protections. Austin's ADU page puts it bluntly: some properties have deed restrictions or restrictive covenants that may affect a project, and it is the applicant's job to check them. A city permit does not override a private covenant. If your HOA documents ban second units, a city approval will not protect you from the HOA.

Easements

An easement gives someone else a right to use part of your land, often a utility company. You usually cannot build over one. Easements show up on your title report and survey. Find them before you place the ADU on a site plan.

How to check your lot

• Order or find your lot survey.
• Pull your title report and read the recorded covenants and easements.
• Read your HOA's CC&Rs and architectural guidelines.
• Ask your city for its current ADU setbacks and any overlays, such as historic or coastal zones.
• In California, if an HOA rule seems to block your ADU, compare it with the state handbook before you give up.

Talking to neighbors

None of the laws above require you to get a neighbor's permission. But a backyard ADU changes what neighbors see. Simple steps such as placing windows thoughtfully, planning construction access and telling neighbors your schedule tend to make the build go smoother.

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