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grandfathering of covenant violations

Started by JimA15 • 19 replies • 6476 views

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JimA15 (Florida)
Posts: 13
Posted:
we have recently amended our covenants and as part of the process have created at least one situation where existing condition are now a clear violation of an amended covenant. the owner is claiming a grandfather exemption. has anyone dealth with this situation
TimB4 (Tennessee)
Posts: 21,050
Posted:
Jim,

I see this like building codes. Your home, when built, was built to the existing code. Over time, the code changed. However, your home is still allowed to comply with the code in use when it was built until you remodel or rebuild. At that time you need to bring things that you are changing into compliance with the existing code.

I've had to deal with this first hand (as the one accused of being in violation). Fortunately, I had State law on my side so the issue as to who was wrong was clear. If your State statutes don't address this, then my suggestion is:

If the violation was a change that was approved by the Association, the Association needs to stand by it's approval. My suggestion would be to specify that the issue is considered in compliance until the item needs to be repaired/replaced. At that time, they must comply with the covenants currently in place.

If the violation was something that wasn't approved by the Association, it would depend on what the violation is. Basically, I would try to come to some compromise as to when it needs to come into compliance.

I do think that it is logical for a new covenant to affect people from the point of adoption forward. However, I know from my research that grandfathering is not automatic and must be written into the agreement. However, if it went before a judge or jury, many would agree that the grandfathering should apply. This is why I encourage you to come to some agreement with the owner.

As you can tell in hind sight, and I say this for others who may be thinking about amending documents, prior to drafting any change the Association should identify who may be affected by such a change and write something into the amendment to address those existing issues.

LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By JimA15 on 12/01/2013 6:25 PM
we have recently amended our covenants and as part of the process have created at least one situation where existing condition are now a clear violation of an amended covenant. the owner is claiming a grandfather exemption. has anyone dealth with this situation

Jim,

The courts in some states, including mine, have adopted a rule that covenants cannot be amended to make them more restrictive. This approach has not been adopted universally and you should seek legal advice as to whether your amendments comply with Florida's common law.

JoK2 (California)
Posts: 198
Posted:
We have been considering this grandfather issue ourselves and it would seem from all that I learned here on hoatalk, that he should have been exempted and the Board should have taken notice that such an issue would arise. I guess it could also be that this owner did not partake in any of the HOA voting etc, because if he was aware that he would be in violation, he would have balked at the idea right?

Our documents do not cover anything about grandfathering anything, but what I ahve learned hear is that the above example is the only reason something would be grandfathered. It seems we cannot grandfather anyone in for any violations of the past if CCR's stay the same. Our example is that if one board doesn't go after violations, we can not "grandfather" in those just because we are a new board. No such thing evidently.

Regarding the state barring an amendment that becomes more restrictive seems like a pandora's box, waiting to be opened, as the term restrictive could be interpreted differently. But I will check our state rules to see!

Good luck@

TimB4 (Tennessee)
Posts: 21,050
Posted:
Jo,

Our Association actually adopted a grandfather clause as part of the Bylaws. Here is what ours say:

Grandfather Clause Any design change (past, present or future) to a Lot located within the [Name] Homeowners Association that was approved, in writing, or identified as being in compliance on any past, current or future disclosure packet properly issued under the Virginia Property Owners' Act, is hereby considered in compliance with current or future Architectural Guidelines providing the item identified in the design change or as reported on a Disclosure Statement is kept in proper repair and appearance and if replaced, the replacement must adhere to the current guidelines adopted and in force by the Association at the time of replacement.

I agree that it could have been written better. However, it does work.
Basically, if there is written approval or (due to VA law) lack of mention of the violation on a Disclosure statement then the issue is allowed providing that the item stays in good order and repair. When it needs to be replaced, it must then comply with existing architectural guidelines. If the owner simply replaces it, it then becomes a violation.
JoK2 (California)
Posts: 198
Posted:
Thanks Tim,
We are on the same track, That is the same clause I referred to that is the type of grandfathering allowed, if they were approved at one point, they will only have to comply when it needs to be replaced.

What cannot be grandfathered in are the actual violations that have occurred without approval, attention, etc. You can't just say, ok, all of the existing or random violations are here by forgiven by such or such a date.
Thanks,
AnnH5 (Florida)
Posts: 304
Posted:
Yes, it is called a "Resolution" by your Board. There are legal precedents in Florida that support such resolutions. You will need an attorney to address it for you and there are legal documents that go with it. If you are going to make restriction changes that will affect homeowners who had prior approval to do something, it is probably a CYA.
JimA15 (Florida)
Posts: 13
Posted:
very helpful, thank you all. the violation is the color of an outside light (all 4.5 feet) and the violator is a Board director. this has really split the community. we are trying to find a resolution. the violator refused to change and claims grandfather status.
you comments helps.....thanks folks
jim

MonicaP (Colorado)
Posts: 12
Posted:
In Colorado the law states if the violation has been in place for 1 year ( 12 months ) it becomes grandfathered in.
This one year
MonicaP (Colorado)
Posts: 12
Posted:
In Colorado the law states if the violation has been in place for 1 year ( 12 months ) it becomes grandfathered in.
This one year
MonicaP (Colorado)
Posts: 12
Posted:
In Colorado the law states if the violation has been in place for 1 year ( 12 months ) it becomes grandfathered in.
This one year
MonicaP (Colorado)
Posts: 12
Posted:
In Colorado the law states if the violation has been in place for 1 year ( 12 months ) it becomes grandfathered in.
This one year
MonicaP (Colorado)
Posts: 12
Posted:
This 1 year limitation is in Colorado's state status and is known as a status of limitations for enforcement of
building, painting, and other retrictions on exterior or landscape changes. So the board needs to start their
actions before the 1 year is up.
MonicaP (Colorado)
Posts: 12
Posted:
This 1 year limitation is in Colorado's state status and is known as a status of limitations for enforcement of
building, painting, and other retrictions on exterior or landscape changes. So the board needs to start their
actions before the 1 year is up.
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Quote:
Posted By JimA15 on 12/08/2013 5:31 PM
very helpful, thank you all. the violation is the color of an outside light (all 4.5 feet) and the violator is a Board director. this has really split the community. we are trying to find a resolution. the violator refused to change and claims grandfather status.


Yes it is grandfathered, but for god's sake, its a light bulb! Let it go. This has divided your community? LOL. Get a life.

LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By SteveM9 on 12/16/2013 9:02 AM
Yes it is grandfathered, but for god's sake, its a light bulb! Let it go. This has divided your community? LOL. Get a life.

Amen!

Can you imagine how these people would respond to something important? On the other hand, let them remain divided over the light bulb to keep them from meddling in serious matters.
SharonP6 (Mississippi)
Posts: 1
Posted:
I didn't see where you add a question only reply. My question is, when you change the covenants where do you state that something is grandfathered in? Do you put it in the actual covenant which is a legal document or in minutes once change is approved.
DouglasM6 (Arizona)
Posts: 724
Posted:
Quote:
Posted By SharonP6 on 04/11/2018 5:33 AM
I didn't see where you add a question only reply. My question is, when you change the covenants where do you state that something is grandfathered in? Do you put it in the actual covenant which is a legal document or in minutes once change is approved.

If you want the vote of approval from the people who will ultimately be in violation you'll need to put the verbiage in.

This is an old thread. It would be best to start a new one with your question.
TimB4 (Tennessee)
Posts: 21,050
Posted:
Quote:
Posted By SharonP6 on 04/11/2018 5:33 AM
I didn't see where you add a question only reply. My question is, when you change the covenants where do you state that something is grandfathered in? Do you put it in the actual covenant which is a legal document or in minutes once change is approved.

Clicking on add new topic from the discussion topic page, located right above the list of topics, will create a new thread.

In response to your question, it's best to have the language in the Covenant.
We actually wrote a general grandfather clause and placed it in our Bylaws.

JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By TimB4 on 12/01/2013 7:10 PM
Jim,

I see this like building codes. Your home, when built, was built to the existing code. Over time, the code changed. However, your home is still allowed to comply with the code in use when it was built until you remodel or rebuild. At that time you need to bring things that you are changing into compliance with the existing code.

I've had to deal with this first hand (as the one accused of being in violation). Fortunately, I had State law on my side so the issue as to who was wrong was clear. If your State statutes don't address this, then my suggestion is:

If the violation was a change that was approved by the Association, the Association needs to stand by it's approval. My suggestion would be to specify that the issue is considered in compliance until the item needs to be repaired/replaced. At that time, they must comply with the covenants currently in place.

If the violation was something that wasn't approved by the Association, it would depend on what the violation is. Basically, I would try to come to some compromise as to when it needs to come into compliance.

I do think that it is logical for a new covenant to affect people from the point of adoption forward. However, I know from my research that grandfathering is not automatic and must be written into the agreement. However, if it went before a judge or jury, many would agree that the grandfathering should apply. This is why I encourage you to come to some agreement with the owner.

As you can tell in hind sight, and I say this for others who may be thinking about amending documents, prior to drafting any change the Association should identify who may be affected by such a change and write something into the amendment to address those existing issues.



Great advice!!! I would add that some states also might regulate via their HOA Laws. For instance in my state if an owner has built something (for instance a shed) in violation of the CCR’s and the HOA has not properly addressed and resolved within one year ... the owner gets to keep what they built via my state laws. If the HOA files a lawsuit after one year ... they have a very high probability of loosing.

So ... my questions would be ... How long ago did the owner implement the item violating the CCR’s (if was more than one year would potentially forget until can be addressed in future) and did the owner have any authorization from the ACC or BOD for what was implemented (if yes, then would again forget until can be addressed in future if any future changes are requested)?

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