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Subject: Grandfathering
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Author Messages
WillG
(South Carolina)

Posts:7


06/20/2021 6:21 AM  
The Mgt Co has explained a recent total wood fence replacement as, “Grandfathered in.” Since it was originally approved when wood was permitted (but not since 2015), the homeowner could replace same for same and do not need to submit for approval. I complained that the new wood fence is a violation as it does not conform to the current standards. The same thing happened in 2018 and neither the previous Mgt Co nor the HOA did anything or even respond to my reported violation. In the fence standards, two statements stand out: All construction must be submitted for approval, and if a homeowner has a wood fence and it needs to be replaced, it must be replaced with aluminum, steel, or brick. Any comments on Grandfathering?
AugustinD


Posts:1920


06/20/2021 6:47 AM  
Posted By WillG on 06/20/2021 6:21 AM
The Mgt Co has explained a recent total wood fence replacement as, “Grandfathered in.” Since it was originally approved when wood was permitted (but not since 2015), the homeowner could replace same for same and do not need to submit for approval. I complained that the new wood fence is a violation as it does not conform to the current standards. The same thing happened in 2018 and neither the previous Mgt Co nor the HOA did anything or even respond to my reported violation. In the fence standards, two statements stand out: All construction must be submitted for approval, and if a homeowner has a wood fence and it needs to be replaced, it must be replaced with aluminum, steel, or brick. Any comments on Grandfathering?


Please quote verbatim what the covenants say on the subject of fence replacement. A "covenant" is not necessarily the same as a "fence standard." If you do not know what a "covenant" is, then ask.

Were the covenants ever amended? If so, when?

When did the two replacements of the fences occur?

HOAs are often not required to report back to whomever reported the violation.

Regardless of whether what the Board is lawful or not, to fight it will cost much time and money. Like years and from $5k to $30k, to start.
CathyA3
(Ohio)

Posts:2599


06/20/2021 8:31 AM  
Posted By WillG on 06/20/2021 6:21 AM
The Mgt Co has explained a recent total wood fence replacement as, “Grandfathered in.” Since it was originally approved when wood was permitted (but not since 2015), the homeowner could replace same for same and do not need to submit for approval
... snip ...



This is a perfect illustration of when grandfathering is appropriate: something that was approved and complied with CC&Rs/rules/etc. at the time it was approved becomes a violation when a rule change or amendment occurred.

How would you feel if you spent thousands of dollars for something that was perfectly OK, only to have a future board tell you: "you're now in violation, you have to spend many more thousands to remove and replace your whatever"? This would be completely unfair to a homeowner who did nothing wrong, and it would almost certainly result in an expensive lawsuit filed against the HOA. I would also expect any judge to rule against any HOA foolish enough to try this, since it's the definition of "unreasonable" and the courts do not like unreasonable.

In short, you're wasting your time over this.
JohnT38
(South Carolina)

Posts:794


06/20/2021 9:05 AM  
Grandfathering this case makes sense. However if I'm hearing you right this is a total replacement and since this is the case I would think they would have to rebuild using the new standard.
CathyA3
(Ohio)

Posts:2599


06/20/2021 9:22 AM  
Posted By JohnT38 on 06/20/2021 9:05 AM
Grandfathering this case makes sense. However if I'm hearing you right this is a total replacement and since this is the case I would think they would have to rebuild using the new standard.



I agree, if the homeowner has chosen to replace the item at this time, then it should be to the new standard.

Grandfathering prevents homeowners who'd acted in good faith from being forced by the HOA to correct something until it's a reasonable time to do so - usually because of the expense involved. If a violation is noted, it's common for the owner in question to be told that they will have to address the violation when they sell the home or when they decide to replace the item.
JaniceM7
(Maryland)

Posts:16


06/21/2021 12:24 PM  
What is only half has to be replaced this year so they use wood again. And next year the other half has to be replaced?
BenA2
(Texas)

Posts:1108


06/21/2021 2:41 PM  
Posted By WillG on 06/20/2021 6:21 AM
The Mgt Co has explained a recent total wood fence replacement as, “Grandfathered in.” Since it was originally approved when wood was permitted (but not since 2015), the homeowner could replace same for same and do not need to submit for approval. I complained that the new wood fence is a violation as it does not conform to the current standards. The same thing happened in 2018 and neither the previous Mgt Co nor the HOA did anything or even respond to my reported violation. In the fence standards, two statements stand out: All construction must be submitted for approval, and if a homeowner has a wood fence and it needs to be replaced, it must be replaced with aluminum, steel, or brick. Any comments on Grandfathering?



There is no automatic grandfathering unless it it written into the law or your governing documents. I would ask the management company to quote the law or governing document so you can read exactly what it says.
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