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The Builder's Remedy in California (2026): A Guide for Land Owners

By Matthew Martinez, Founder, CEO & Managing Broker, Diamond Real Estate Group. California DRE #01869679.

The builder’s remedy is a part of California’s Housing Accountability Act (Government Code section 65589.5) that limits a city’s or county’s power to deny a qualifying mixed-income or affordable housing project, even one that conflicts with local zoning and the general plan, when that jurisdiction lacks a housing element in substantial compliance with state law. Since January 1, 2025, AB 1893 sets lower affordability shares and firm density caps for these projects, and AB 1886 says only the state Department of Housing and Community Development (HCD) or a court can decide whether a housing element complies.

For a landowner or land buyer, the remedy is a penalty on a jurisdiction, not a permanent right attached to a parcel. It depends on the jurisdiction’s status on the day a complete preliminary application is filed, and that status changes. This guide explains the rules as written in October 2026, how a project locks in its rights, and what to check before you price or buy land on the strength of it. It sits within our guide to state development laws, which compares the builder’s remedy with SB 9, SB 684 and SB 79.

How the builder’s remedy works

Subdivision (d) of the Housing Accountability Act covers housing for very low, low- or moderate-income households and emergency shelters. A local agency may not deny such a project, or approve it with conditions that make it infeasible (design review included), unless it makes written findings, based on a preponderance of the evidence, on one of five narrow grounds.

The fifth ground is the one that matters here. It lets a jurisdiction deny a project that conflicts with both its zoning and its general plan, but only if, on the date the application was deemed complete, it had adopted a revised housing element in substantial compliance with state law. When it had not, that defense is unavailable. The other four grounds are narrow and remain separate questions for your attorney.

The statute now defines a “builder’s remedy project” in subdivision (h)(11): a housing development project that provides housing for very low, low- or moderate-income households, filed when the jurisdiction did not have a substantially compliant housing element, and meeting the density and site limits described below.

What AB 1893 and AB 1886 changed in 2025

Both bills took effect January 1, 2025, according to the Attorney General’s June 5, 2025 legal alert (OAG 2025-03) and an Allen Matkins legal alert from June 2025. Before AB 1893, a mixed-income project needed 20% of its units for lower-income households; the statute now offers lower thresholds.

Topic	Rule in Gov. Code 65589.5 as of October 2026
Mixed-income project	At least 13% of units for lower-income households, or 10% for very low-income, or 7% for extremely low-income
Small projects	A separate tier covers projects of 10 or fewer units on a site under one acre, at a density of at least 10 units per acre
Lower-income project	100% of units, excluding managers’ units, for lower-income households
Moderate-income project	100% of units sold or rented to moderate-income households
Affordability term	Recorded restrictions of 55 years for rentals and 45 years for owner-occupied units
Who decides compliance	Only HCD or a court of competent jurisdiction (AB 1886, which added Gov. Code 65585.03 and 65589.55)
Applications filed before 2025	Projects deemed complete before January 1, 2025 may keep the prior rules or opt into the new ones

AB 1886 closed a gap that had led to disputes. A city can no longer declare its own adopted housing element compliant; Allen Matkins summarizes the rule as requiring both adoption and an affirmative finding by HCD or a court.

Density caps and site limits

A builder’s remedy project is no longer open-ended on density. Counted before any state density bonus under section 65915, the project’s density may not exceed the greatest of three figures:

50% more than the minimum density that state housing element law deems appropriate for that jurisdiction;
three times the density allowed by the general plan, zoning ordinance or state law, whichever is greater; or
the density specified for the site in the housing element.

The cap rises by 35 units per acre if any part of the site lies within half a mile of a major transit stop, in a very low vehicle travel area, or in a high or highest resource census tract on the latest CTCAC/HCD Opportunity Map. Minimum densities also apply: near commuter or heavy rail stations a project must meet the site’s minimum, and elsewhere it must reach the lower of the local minimum or half the state-referenced figure.

The statute also bars a builder’s remedy project on a site that abuts land where more than a third of the square footage was used for heavy industrial or Title V industrial purposes within the past three years. Other state and local overlays, such as fire, flood or farmland rules, should be checked separately for each parcel; see our guide to fire hazard severity zones in the North Bay.

Which local standards still apply

Under subdivision (f)(6), a jurisdiction may require only the objective, quantifiable, written development standards that would have applied if the site already had a general plan designation and zoning allowing the density and unit type proposed. It may not apply those standards, alone or together, in a way that renders the project infeasible, and the jurisdiction bears the burden of proving it complied.

In practice that means the comparison zone matters. A project proposed on a single-family parcel at multifamily density is measured against the standards for a multifamily zone, not against the rules written for houses. Subjective design review, the kind that turns on a planner’s or commission’s judgment, does not fit within these limits.

Vesting: why the preliminary application date matters

Subdivision (o)(1) says a housing project is subject only to the ordinances, policies and standards in effect when a complete preliminary application was submitted. That application, created by SB 330 and set out in Government Code section 65941.1, is how a builder’s remedy project locks in the jurisdiction’s status.

Check status the same day. Confirm on HCD’s Housing Element Review and Compliance Report that the jurisdiction is not in substantial compliance, and keep a dated copy.
File a complete preliminary application. Section 65941.1 lists the contents: parcel numbers and legal description, site plan, elevations, massing and height, unit counts and square footage, parking, affordable unit counts, hazard and environmental information, existing units to be demolished and whether they are occupied, and the owner’s consent if the applicant isn’t the owner. Pay the processing fee.
File the full application within 180 calendar days. Miss the window and the vested position is at risk.
Respond to incompleteness letters within 90 days. If the applicant doesn’t supply the missing information in time, the preliminary application expires.
Keep the project close to what was filed. A change of 20% or more in unit count or square footage, other than one caused by a density bonus, means the preliminary application must be resubmitted.

The Attorney General’s alert says a local government’s refusal to process a builder’s remedy application may violate the Act. It describes California Housing Defense Fund v. City of La Cañada Flintridge (Los Angeles Superior Court, March 4, 2024), in which the court found the city lacked a substantially compliant element when the application was submitted and held that a builder’s remedy application vests when a complete preliminary application is filed. HCD did not certify that city’s element until November 17, 2023, after the filing. This is a trial court ruling as the alert reports it, not appellate precedent, so ask counsel how much weight it carries.

Checking a jurisdiction’s housing element status

HCD’s Housing Element Review and Compliance Report tracks housing elements under review and whether each jurisdiction is in or out of compliance. When we checked in October 2026, the report’s data loaded separately from the page text and could not be captured for this guide, so we do not list the status of any North Bay or Bay Area city or county here. Status changes as jurisdictions adopt revisions, finish required rezoning or receive HCD letters.

Look up the jurisdiction on HCD’s report the day you file, and save the result.
Read the latest HCD review letter for that jurisdiction; it says what HCD found missing.
Confirm whether the parcel is in a city or the unincorporated county, because each has its own housing element. Our guide to telling city from county property shows the method for one Bay Area county.
Ask planning staff whether any builder’s remedy applications are already on file and how they are being processed.

What it means for buying or selling land

A builder’s remedy filing can change what a site is worth to a developer, but only while the jurisdiction’s status allows it and only for a project that pencils with the required affordable units. Paying for a remedy that is gone by the filing date means paying for density the buyer may never be able to use.

For buyers

Write a feasibility period long enough to confirm status, prepare a preliminary application and get a land use attorney’s opinion before your deposit goes hard.
Get the seller’s consent to file a preliminary application during escrow, since section 65941.1 requires owner consent when the applicant isn’t the owner.
Model the project at the required affordable share and the statutory density cap, not at the most optimistic number.
Check access, utilities, hazard maps and tenants; existing occupied units to be demolished are part of the application and bring their own rules.

For sellers

Market the land on what current zoning allows, and present builder’s remedy potential as a possibility that depends on status at filing.
Gather the parcel’s zoning, general plan designation, surveys, utility letters and any planning correspondence before listing.
Consider whether a buyer’s filing during escrow affects your plans if the sale doesn’t close.

Compare other routes too: an SB 9 lot split, a ministerial SB 684 small-lot subdivision, density near rail stations under SB 79, or a conventional map described in our guide to the land entitlement process in Sonoma County. Diamond may refer you to partners we work with, such as land use attorneys and civil engineers; you’re free to choose any provider.

This page explains a state housing statute in general terms and is not legal advice. Before you sign a land contract or file a builder’s remedy application, have a California land use attorney review the jurisdiction’s status, the project design and the vesting timeline.

Questions people ask

What is the builder’s remedy in California?

It is the rule in the Housing Accountability Act that stops a city or county without a substantially compliant housing element from denying a qualifying affordable or mixed-income project just because it conflicts with local zoning and the general plan. The project must still meet the statute’s affordability, density and site limits.

Does the builder’s remedy still exist after AB 1893?

Yes. AB 1893, effective January 1, 2025, rewrote it rather than repealing it. It lowered the mixed-income affordability share to 13% lower-income, 10% very low-income or 7% extremely low-income units, added density caps, and limited local standards to objective ones.

How many affordable units does a builder’s remedy project need?

A mixed-income project needs at least 13% lower-income, 10% very low-income or 7% extremely low-income units. Projects that are 100% lower-income or 100% moderate-income also qualify, and a separate tier covers projects of 10 or fewer units on sites under one acre.

Can a city defeat a project by adopting a compliant housing element later?

Under subdivision (o)(1), a project is subject to the rules in effect when its complete preliminary application was filed, and the trial court ruling described in the Attorney General’s 2025 alert measured compliance at the date of that filing. The project must still meet the 180-day filing deadline and avoid major changes.

Who decides whether a housing element complies?

Since AB 1886 took effect on January 1, 2025, only HCD or a court can find a housing element in substantial compliance. A city’s own declaration is not enough.

How do I find out if a Bay Area city is out of compliance?

Use HCD’s Housing Element Review and Compliance Report and read the jurisdiction’s latest HCD letter. Check on the day you file, because status can change whenever HCD acts on a revision.

Does the builder’s remedy make my land worth more?

It can for a developer if the project works financially with the required affordable units and the jurisdiction is out of compliance when the application is filed. Because status can change, buyers usually discount that potential, and a seller should price on current zoning.

If you own or are buying development land and want to talk through a site’s options, start with our investment property services or contact Diamond to arrange a call.

Sources & notes

Statutes were read on California Public Law, a mirror of the official code, because the Legislature’s site was unreachable. Court rulings are described as the Attorney General’s alert reports them.

Last reviewed October 2026 by Matthew Martinez.