Grandfather clauses...

Started by TerryB6 • 11 replies • 2516 views

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TerryB6 (Oklahoma)
Posts: 38

Posted:

Two previous Boards have allowed covenant violations to be grandfathered in (pets, out buildings, fences, etc). With a new Board coming in, do we have any authority to address these existing violations, or has a history been established that we have no legal standing to correct?

PaulT6 (California)
Posts: 409

Posted:

Were they grandfathered in in writing, and if so, how? If not in writing I think the new Board could just follow the rules. They could have the violations corrected, or allow them to exist and treat any new violations according to the rules. In writing or not it appears that Boards can do just about anything they want to with legal action being the only recourse, short of recall.

Paul T

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I agree with Paul.

Even if rules were ignored/not enforced does not mean the rules have gone away. one could draw a line in the sand and start enforcing them. Of course after drawing the line, then sit back and await the screaming, byatching, threat of lawsuits, threat of recalls, etc.

I would not grandfather anyone in. I might serve notice about things that were not properly addressed/enforced in the past (especially if the declarant allowed, blame them) and put all on notice that there is a new marshall in town that will be enforcing the rules henceforth.

Hope this helps.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Tread carefully into this. Lawyers have a phrase that is repeated almost daily in courtrooms: "My client relied on the words of the defendant to my client's detriment."

We need a lot more details, such as what are the violations, when did they occur, what previous boards did to make you believe that they were grandfathered?

If previous boards did anything to lead the owners to believe that what they did was approved, you may have a fight on your hands. If the developer gave his okay, you will have a problem. If these violations have existed for any length of time, you will have an uphill battle convincing a court that there is some valid reason for waiting until now to do anything.

I have another question: What is it with you people that fences and sheds are such a hot-button issue? I live in one of the largest cities in the country and virtually every home has a fenced-in or walled-in backyard and sheds are commonplace. Yet, somehow, the sun comes up every morning. Terry, I do not mean to direct this question to you only. Half the threads on this forum seem to be a complaint about sheds and the other half about fences. Obviously, I don't get it nor do the other million-plus people who live around me. What is it about sheds and fences that make them worthy of harassing your neighbors?

PaulT6 (California)
Posts: 409

Posted:

Larry,

I think the fence issue is when someone is thinking about buying into an Assn they either want fences or not. I think people with dogs and little kids tend to want fences.
Our Assn does not allow fences except for low lying see through types, mostly requested by dog owners so they can leave their dogs out when they go out. This allows the dog to bark and howl all day for the neighbors to enjoy. Almost all of our,400 properties are in forested areas, kind of nice not having fences, tends to make you think you are living in the woods.

Sheds come in all kinds of shapes and sizes, some home made ones look exactly like home made. Our Architectural Standards Committee may approve some sheds of a modest size and built to basically match the appearance of the house. Seems to work out pretty well for us, our Assn looks pretty good.

Of course, living in a HOA is voluntary.

Paul T

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Terry,

If your HOA board faces no pending future business matters or projects, then you could look back in the past find action to take. You will bog down heavily by looking too far backward. It depends on how your board wants to operate.

TerryB6 (Oklahoma)
Posts: 38

Posted:

They're not necessarily a hot button for me, but there are standards in the covenants that sheds are to be of a certain size and construction to compliment the house. To the best of my knowledge, no paperwork was issued to confirm a violation was grandfathered in; just word from the oncoming Board that moving forward compliance would be enforced. Of course, each preceeding Board had their pet peeves.

I understand that most covenants are in place to ensure the neighborhood standards stay in place while the developer still had lots for sale. I would just as soon allow people to live their lives and enjoy their homes without a neighborhood watchdog. There are those that think otherwise..

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By TerryB6 on 11/19/2012 6:39 PM
They're not necessarily a hot button for me, but there are standards in the covenants that sheds are to be of a certain size and construction to compliment the house. To the best of my knowledge, no paperwork was issued to confirm a violation was grandfathered in; just word from the oncoming Board that moving forward compliance would be enforced. Of course, each preceeding Board had their pet peeves.

I understand that most covenants are in place to ensure the neighborhood standards stay in place while the developer still had lots for sale. I would just as soon allow people to live their lives and enjoy their homes without a neighborhood watchdog. There are those that think otherwise..

I think your board made the correct call to give notice as to future action on CC&R violations. It's unbelievably easy to join an HOA board - or be elected an officer - and proceed to make clear how you believe former officers were idiots.

Regarding the "Live Free or Die" philosophy some property owners bring with them as they sign off on joining a HOA-protected community, I've grown to disagree with it after supporting it initially. People really move to HOAs because there are regulations and embrace them. They are not in the wrong. The people who want HOA protected home values but don't want to apply the rules to them are in the wrong.

Situations such as you describe in your earlier post are very tough to consider as an HOA board w/ new officers.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Fences and sheds are one of the hottest contested issues in many, many associations.

GlenL (Ohio)
Posts: 5,491

Posted:

First off it's not grandfathering, it's ignoring or turning a blind eye to the Covenants. Grandfathering occurs when something that was permitted is for whatever reason no longer. For example if there were no regulations prohibiting sheds and a Covenant was passed to prohibit them. The people who had them when the Covenant was changed would be allowed to keep them until they needed to be replaced or the property changed hands. This is why when a Covenant is outdated it needs to be amended or removed, not ignored. While the current Board may see the logic in ignoring it, there is nothing to stop future Boards or homeowners from enforcing it.

Your past Boards have for whatever reason have done this leaving the current Board to be the bad guys. Now most CC&R's contain language to the effect that no matter how many times a Covenant has been ignored it is still enforceable. Foe example:

Waiver. No covenants, restrictions, conditions, obligations or provisions contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur.

That being said, IMO the current Board needs to be reasonable and work with the homeowners in violation to get them into compliance. At the very least you need to document the current violations so you know if new ones happen.

Studies show that 5 out of 4 people have problems with fractions

GlenL (Ohio)
Posts: 5,491

Posted:

Foe Example. Shakes head sadly and wishes for a way to edit.

Studies show that 5 out of 4 people have problems with fractions

TerryB6 (Oklahoma)
Posts: 38

Posted:

A lot of things to think about. Thanks to all for responding. I'm sure there will be more to come, so stay tuned!

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