Idaho’s New ADU Law Creates Uncertainty for Existing HOA Restrictions
Effective July 1, 2026, Idaho significantly expanded protections for accessory dwelling units (“ADUs”). Senate Bill 1354 not only limits how cities may regulate ADUs, it also restricts the ability of homeowners’ associations (“HOAs”) to prohibit them.
The legislation raises an important question that many HOAs, developers, and property owners will soon confront:
Are existing CC&R provisions that prohibit ADUs still enforceable?
The answer is not as clear as many assume.
What Changed?
The amended version of Idaho Code § 55-3212 provides:
“No homeowner’s association shall add, amend, or enforce any covenant, condition, or restriction in such a way that limits or prohibits accessory dwelling units … unless the owner of the affected property expressly agrees in writing.”
The Legislature also enacted new Idaho Code § 67-6541, which prohibits most Idaho cities with populations over 5,000 from banning ADUs in single-family residential zones and establishes statewide minimum standards for local regulation.
Together, these provisions represent one of the most significant changes to Idaho land use law in recent years.
Existing CC&Rs May Not Be Safe
Many practitioners have assumed that CC&R provisions recorded before July 1, 2026 remain enforceable because the statute should operate prospectively.
The statutory language, however, suggests otherwise.
The Legislature prohibited not only the adoption or amendment of restrictive covenants, but also their enforcement. That choice of words is significant. If an HOA cannot “enforce” a covenant prohibiting ADUs, the age of the covenant may be irrelevant.
Had the Legislature intended to grandfather all existing ADU restrictions, it could have said so expressly.
Instead, the statute contains only a narrow grandfather clause preserving certain restrictions on a property owner’s right to transfer real property. It does not expressly preserve existing ADU prohibitions.
The Grandfather Clause Is Limited
The statute provides that nothing in the section prevents enforcement of covenants limiting a property owner’s right to transfer an interest in land if those restrictions existed when the owner acquired the property.
That language addresses transfer restrictions—not accessory dwelling units.
This distinction matters. Courts generally presume that when the Legislature includes a grandfather provision for one category but omits another, the omission was intentional.
What Should HOAs Do?
Until Idaho appellate courts interpret the new statute, HOAs should exercise caution before attempting to enforce CC&R provisions prohibiting ADUs.
Associations should consider:
- Reviewing governing documents for ADU restrictions.
- Consulting legal counsel before denying an ADU application.
- Evaluating whether amendments to governing documents are appropriate.
- Monitoring future judicial decisions or legislative amendments that may clarify the statute.
What Should Property Owners Do?
Property owners should not assume that a recorded prohibition automatically prevents construction of an ADU.
Likewise, property owners should not assume that all HOA restrictions have become unenforceable.
Each situation will depend on the governing documents, the property’s history, applicable municipal regulations, and ultimately how Idaho courts interpret the new legislation.
Looking Ahead
Senate Bill 1354 reflects a clear legislative policy favoring accessory dwelling units as a means of increasing housing opportunities throughout Idaho.
What remains uncertain is how broadly courts will interpret the Legislature’s decision to prohibit HOAs from “enforcing” restrictive covenants.
That question is likely to become the subject of litigation over the next several years.
Until then, both HOAs and property owners should proceed carefully. The language of the statute creates substantial uncertainty regarding the continued enforceability of existing CC&R provisions that prohibit accessory dwelling units.
This article is for informational purposes only and does not constitute legal advice. Because Idaho Code § 55-3212 was recently amended, judicial interpretation is limited, and the law will continue to develop.
Peter J. Smith IV is a real estate, business, and mining attorney at Fennemore with extensive litigation experience and deep transactional knowledge. In his practice, he represents mining companies, businesses and entrepreneurs, real estate developers, and property owners through complex matters to efficiently close transactions and proactively avoid potential litigation. He can be reached at peter.smith@fennemorelaw.com.