A Bit of a Mess

Part II of III

Legislation can neither be wise nor just which seeks the welfare of a single interest at the expense and to the injury of many and varied interests.

\- Andrew Johnson

Last column I summarized the new ADU legislation and noted ADUs are allowed in each condo association and HOA, at least one unit per single-family residence. This column, let's see how that might play out in reality.

First, this means many townhouse unit owners who have an end unit will want to simply bump out the side of unit and create an ADU. Of course, in say, a forty unit association there are usually eight or so townhouse buildings, comprised of four to six units. So, that would mean 16 or so new ADUs could be built. In one association.

Or, if there is too much pressure from the condominium association and they don't want a fight about blowing out a wall on an end unit and putting in an ADU, the owners can put them above an attached garage.

But wait. Aren't garages underneath the townhouse unit and you walk upstairs to the living area? Sometimes, but nowhere near always. Many townhouse units are in a 2-unit building, with the units attached in the middle and a garage on either end. Or sometimes the garages are in the middle of the units to act as a noise buffer between the units. So, without an ordnance owners will now be allowed to place an ADU above the garage, or simply turn the garage into an ADU.

Of course, condominium associations allowing them in townhouses will inevitably face owners of the interior units who will want to do away with the tiny deck and put in a rental unit, I mean an ADU, in the rear of their unit. After the ADU is up and creating revenue for the owner, the owner may well then claim that because the original declaration and site plan granted them a deck or patio in the rear of the unit, and the municipality now allows for ADUs, they are now entitled to take common area and convert it into a deck or patio behind the ADU. The legal issues multiply, boards of directors begin to sweat and certain attorneys begin to drool.

Allowing a ban only for townhouse unit ADUs, means, of course, there can be no ban on flats or garden style units, i.e. one-floor living with units above and/or below your floor. So, if I'm on the first floor in a flat, there's apparently nothing a town or city could do to prevent me from putting another apartment outside the wall of my unit, or any unit on the first floor. If a municipality denies such an application, it will likely lead to litigation of discrimination against flats, especially the end units which could simply, like townhouse, bump out the wall and add an ADU.

And then there are condominium associations that are actually land units. These are associations where the home is actually in the middle of the land unit and the boundary of the unit itself is the boundary of … wait for it … the Lot, which means no such land unit can be stopped from adding an ADU.

We also have the legal issues with any addition of an ADU to an existing condominium association.

First, condo associations are private property and, as such, they are bound by their declaration and bylaws, and the law is clear that they can be more restrictive than the law. For instance, though every municipality allows for pets, an HOA or condo association can ban them. So, the association, not by rule, but by association vote, should be able to specifically ban ADUs. You may want to consider doing so at your next association meeting.

And condominiumassociations can place rental restrictions on the number of homes rented. This is particularly important as FHA has a blacklist of condominium associations with more than 50% rentals, and if ADUs are allowed, it's likely more associations will make the blacklist making it very hard to sell a home, in turn depressing prices.

Next there are the conflicts with the Condominium Act. It's clear that once the number of units are set and described in the floor plans, they can't be increased in size by changing boundaries, such as by adding an ADU, or by changing the number of living units, such as by adding an ADU. Yet that that isexactly what is being allowed the new legislation, because the law specifically says a town can allow the townhouse ADU to be sold off as a separate unit, which I guarantee towns will allow.

Subsequent condominium conveyance of any accessory dwelling unit separate from that of the principal dwelling unit shall be prohibited, notwithstanding the provisions of RSA 356-B:5, unless allowed by the municipality.

RSA 674:72, I.

Those in favor of the legislation, read the owners/landlords, will undoubtedly argue it's not a separate unit, especially if there is a connecting door. But the new legislation itself notes that the ADU can then be sold as a separate unit with the permission of the town or city.

Next time, how ADUs affect HOAs, and some steps to take with your municipality.