A 1978 covenant that never says ADU but kills it anyway
Reading the CC&Rs on a lot before an offer goes in is worth doing even when it feels unusual. Take a subdivision of about 90 homes with covenants recorded in 1978, including a clause prohibiting any structure used or designed for use as a separate dwelling other than the main residence. That language was written 45 years before the state in question allowed ADUs on lots like this one. The result is a state statute that permits the unit sitting against a private covenant that forbids it. Whether the statute overrides the recorded covenant depends on the state and on the exact wording of both, which is a question for a real estate attorney licensed there rather than a forum. A well reasoned opinion on a case like this usually comes back with real hedging in it, and that hedging is the correct amount. The practical complication is often funnier than the legal one. Finding the HOA can mean no website, no management company, and no filings for years, with a registered agent on file who died decades ago. It is not unusual to eventually reach a single elderly board member who says dues stopped being collected years earlier, that two houses on the street already have basement apartments, and that he has personally visited one of them. An unenforced covenant is still a recorded covenant. It shows up on the title commitment and a future buyer's lender will read it. Buyers in this position often proceed anyway once an attorney letter is in the file, with the understanding that the real risk is a future board deciding to revive itself and enforce what has sat dormant for decades.
