Grandfather Clauses – What are they? When do they help? – Article by Beth Grimm, P.L.C

Article by Beth Grimm, P.L.C. HOA & Condo Attorney

Some days I get emails and I have to wonder: “Is there something wrong with the sender … or is there something wrong with the person they are talking to … or is there some kind of miscommunication going on?

Here is a scenario worth addressing which I received today from a reader:

“For over a decade, our members have personalized the areas immediately adjacent to their front doors. At one point the Property Manager affirmed and/or encouraged this practice with a letter telling owners to make their space reflect who they were, by personalizing their entrances. Then we elected a new president who wants to strictly enforce Rules & Regulation that have been ignored for more than 10 years.”

The “enforcer” apparently went on to do some things I won’t mention here because I do not like to single out any particular association when I am doing a blog on a question that is commonly asked. But read on for questions (and believe me when I say I hear about some bizarre enforcement tactics).

“We tried [mentioned some dispute resolution processes] but the lawyer said there is no such thing as a “Grandfather Clause.” What can we do now?”

Educate the lawyer is what I say! Grandfather clauses are commonly used to assist HOAs and Condo Associations to get over past mistakes or laxity in leadership, or to change course if something that seemed like it might not be a problem became a problem, such as this very situation. Unfortunately, giving owners leeway to do what they will without any reasonable oversight can backfire. There are always 100 people who have good sense to everyone that has questionable sense but it’s the questionable sense (or sometimes the contrary sense – or perhaps I should say nonsense) that gets everyone steamed.

When things get out of hand like this there may be some benefit to grandfathering some of the planted areas. Maybe not. I do not have pictures to share. But if the Board wants to get control back it needs a plan. That plan needs some attorney review or assistance (obviously I think from an attorney that understands the concept of grandfathering and when it can be useful).

There are lots of important factors, like what the governing documents say, how offensive or detrimental the plantings are, if they require additional maintenance costs, if they need to be removed and/or the area restored because of lack of maintenance – lots of considerations going into how to roll back from a right given that has gotten out of hand.

Grandfathering something means letting it remain until some event occurs. If the pet rules are going to change from 2 to 1, it means you will have to grandfather the extra pet until it is gone (such as to a “better place”) – and to verify the pet and prevent the “perpetual second pet” situation you will have to gather information on grandfathered pets.

Maybe someone misunderstood someone. A lawyer who practices HOA law should know about grandfathering ops, but here, maybe it wasn’t workable. Who knows. I do not like to criticize colleagues, but I will jump at the chance to educate them.

– Click here view the original article –



Here are some additional resources regarding “Grandfather Clause”:

Legal Dictionary – Click here  

USLegal Definition – Click here 

Grandfathering – Davis Stirling Act – Click here

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