Before a lot can be split, a homeowner must also review and comply with their association’s governing documents, which may contain a prohibition on lot splitting or partitioning. Questions have been raised as to whether SB 9 can void an explicit prohibition of physical or legal partition or lot subdivision. Unlike the statutes governing the installation of ADUs/JADUs, which explicitly state that CC&Rs cannot prohibit or unreasonably restrict “the construction or use of an accessory dwelling unit or junior accessory dwelling unit” (Civ. Code Section 4751(a)), none of the provisions of SB 9 nor the enacted Government Code sections specifi cally state that CC&Rs cannot prohibit or unreasonably restrict lot splitting. Rather, the author of SB 9, Senator Toni Atkins, drafted a letter to the Senate Journal for the “purposes of clarifying the applicability of SB 9’s provisions.” The letter states: “My offi ce has consulted with Legislative Counsel, and SB 9 would not override CID or HOA restrictions. Specifi cally, SB 9 is silent on the issue, meaning the bill contains no provisions that supersede HOA or CID governing documents. As we have seen with other housing legislation, SB 9 would have to contain an explicit and proactive provision to override those rules. This bill does not.” (Emphasis added.)
While Senator Atkin’s letter may help highlight the bill’s plain language, it is an informal document that is not binding in a court of law. In the event a prohibition in an association’s CC&Rs is challenged in court as being unenforceable, the above-stated letter could be used by an association to support its position that SB 9 does not prevent it from prohibiting lot splitting. However, the court would likely also consider the public policy considerations and intent of SB 9 (e.g., the law was designed, in part, to create new affordable housing and income streams for Californians) to determine whether an association’s prohibition on lot splitting confl icts with the public policy of creating more affordable housing. The Supreme Court of California has recognized that CC&Rs are presumed to be enforceable unless they violate “fundamental public policy.” (Nahrstedt v. Lakeside Village Condo. Assn., Inc., 8 Cal.4th 361 (1994).) As highlighted in the Attorney General’s response to
“The number of new homes permitted under SB 9, if
constructed, may result in new difficulties for associations. The number of residents will undoubtedly increase, which means limitations on available
parking, overused facilities, stress on infrastructure such as water and sewer lines engineered and built to service a set number of residences, and a variety of potential enforcement issues related to new tenants.”
city moratoria, the policy supporting SB 9 may also dictate that a CC&Rs provision restricting subdivision could be found to be unenforceable. In such a scenario, a court would make the fi nal determination.
How a Homeowners Association Can Respond Homeowners associations can work with legal counsel to review their governing documents to determine whether prohibitions on lot splitting and/or partitioning currently exist in their documents. If the CC&Rs do not include such restrictions, and the association wants to attempt to prevent homeowners from splitting their lots, it may want to consider amending its CC&Rs to specifi cally prohibit lot splitting or partitioning of lots within the community.
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