Own an illegal ADU in Berkeley? New program offers amnesty

Berkeley homeowners with illegal accessory dwelling units (ADUs) could qualify for a new amnesty program. Once you prove your extra unit is safe for habitation, you could avoid the threat of code enforcement fines and penalties.

Advocates for the program say it will bring more cost-effective rental units onto Berkeley’s high-cost housing market — where the average home sells for $1.4 million and the average one-bedroom apartment rents for $2,250, according to Zillow — and make housing safer in general, though some local officials say the program rewards bad behavior by homeowners. 

The program is open only to owners of lots with single-family dwellings where there is also a non-permitted accessory dwelling unit (ADU) or junior accessory dwelling unit (JADU) — including converted garages, attics, basements and so on.  The unit must have been built or converted before 2020.

City officials said they are offering total confidentiality to anyone who is interested in learning about the program. Those interested can set up a confidential consultation without even saying what parcel they’re interested in or, for that matter, who they really are, city Planning Director Jordan Klein told Berkeleyside in a phone interview. Eight people have already scheduled consultations since the program launched at the beginning of this year, Klein said.

“People have kept their secondary units off the market for fear of a tenant turning them in,” said former Councilmember Susan Wengraf, who in 2019 authored a council referral asking city staff to study the issue and develop an amnesty program. At that time, “I was thinking, my god, we have a housing shortage, why don’t we figure out a way to get these units back into productive use?” Wengraf said. 

Applications are open through the end of 2028. While the program is only open for now to owners of single-family dwellings, the city is keeping an eye on widening it to other property owners in the future. “Duplexes and multi-family buildings are not eligible for inclusion in the pilot program, but will be included in future phases,” according to a Dec. 20 memo to the City Council from City Manager Paul Buddenhagen. 

Klein said enforcement in Berkeley is “complaint-based,” and that there would not be any increased enforcement against homeowners who do not choose to participate in the program.

“That’s not what this initiative is about, this initiative is just the opposite really,” Klein said.

ADUs: A huge part of new housing

A significant percentage of new homes in California — nearly 20% of the units built in 2023, according to the state Department of Finance — are ADUs. But those figures may not account for non-permitted units, which can also add substantially to cities’ housing stock. San Jose, for example, may have up to three or four times the number of non-permitted ADUs as permitted ones, according to a 2024 study published in the Journal of the American Planning Association.

Estimates presented to the City Council in 2019 indicated there could be as many as 4,000 non-permitted secondary units in Berkeley, but planning officials said this year that number was speculative at best.

Klein said there is no formal accounting of non-permitted units in Berkeley. Nor was there readily available information as to where the city’s properly permitted units are, though “my sense is it’s pretty evenly distributed” around the city, he said.

Permits issued for ADUs specifically began to spike in Berkeley in 2017 and 2018, according to data from the state Department of Housing and Community Development. That spike coincided with state- and city-level rule changes aimed at fast-tracking “by right” construction of ADUs — meaning owners can build or convert with fewer permitting hurdles — presuming they meet some simple design and safety standards. From 2017 to 2023 there were between 74 and 121 permits issued each year for Berkeley ADUs, with a total of 681 for those years.

This graph shows ADUs permitted in Berkeley by year. Credit: California Department of Housing and Community Development

The state already had some provisions for amnesty for non-permitted units. Last year a new law spelled out how property owners could obtain permits by meeting certain sections of the state housing code — which is what guides local safety inspections — rather than the building code, which in most cases requires more drastic and costly changes.

Elmwood resident Denise Pinkston is the founder of the Casita Coalition, which advocates statewide for ADUs, multiplex homes and townhomes and has lobbied Sacramento on behalf of ADU amnesty guidelines.

“Right now what we have is an epic lack of affordable housing,” she said. Basing permits on the housing code “finds a reasonable balance between human safety and affordability.”

Casita supported the new state guidelines for ADU amnesty through the housing code. While more relaxed than the building code, the housing code still calls for safety features like vents on furnaces and other measures to keep tenants safe and alive.

“Some of the code requirements really don’t affect life safety,” Wengraf said. “Years ago the required ceiling height was 8 feet, so if you have a unit that’s 7 feet, 8 inches, that’s not up to code, right? But it’s not affecting the habitability or safety of the unit in any way.”

Berkeley’s pilot program has two pathways for owners to legitimize their units. One, by bringing them up to building code, earns certificates of occupancy. If owners choose to go the other route, ensuring only that their units meet housing code, they will receive housing certificates of compliance — which they can lose for future violations of the housing code. 

While bringing a unit into compliance with the building code can be more burdensome and expensive, it comes with more security since, as Klein said, “a certificate of occupancy cannot be revoked.”

Critics want concessions if amnesty extends to big landlords

While many see ADUs as a low-cost, low-hassle way to build new housing, Soli Alpert, the chair of the Rent Stabilization Board, said that larger landlords can take unfair advantage of existing tenants when they undertake construction of ADUs, something that is easy to get started but can affect existing tenants’ parking and other amenities.

Alpert said he hoped any expansion of the program down the road into multi-family buildings would require landlords to voluntarily offer rent control protections for the units involved.

“ADUs were originally envisioned to be something that enabled moderate density increases when you have a single-family home,” Alpert said. “When a landlord is allowed to build on an ADU to an apartment building, it’s not an ADU, it’s just another unit.”

In the near term, Alpert said that Berkeley’s amnesty program runs the risk of “rewarding people for bad behavior.”

Presumably, homeowners with non-permitted extra units have been paying a lower property tax rate, if the extra units were never included in their assessments. And whoever built or converted new units (not necessarily the current owners) would not have paid the fees required had the ADU been constructed legally, although the amnesty program does provide some revenue for the city through permitting and other fees.

“I think some kind of amnesty program makes sense as long as we’re making sure tenant rights are being respected,” Alpert said. But there “should be some kind of consideration” for the tax revenues the city may have missed out on. “I think that’s a real challenge and something that we have to balance, and it’s not clear to me that the balance is struck,” he said.

City urges homeowners to call for a consultation

“I know people who are ready to line up for this program … who have ADUs that were there when they bought their homes,” Pinkston said. “They think they’re safe but they haven’t ever had them inspected.” Several have long-term tenants whom they don’t want to be forced to evict, she said.

Klein said the city has staff dedicated to the amnesty program and that it should not affect any other programs. There is no limit to the number of homeowners who can apply, but if the applications overwhelm the people working on them, the city may temporarily pause applications.

Klein and Wengraf encouraged anyone considering taking advantage of the amnesty program to visit the city’s web page on it and set up that first meeting to better understand the process and how much it will cost them.

Homeowners requesting that first, confidential consultation “don’t have to identify the ownership, occupancy or location of the property,” Klein said. “If somebody wanted to set up a consultation with a pseudonym, that’s fine.”

Details on the program, including eligibility, the two routes for amnesty and information on setting up a first consultation, are available on the city’s website. The Casita Coalition also maintains a tip sheet on the costs and processes of legalizing non-permitted ADUs and the risks of leaving them be.