Grandfather Clause

Started by HaroldS • 7 replies • 11344 views

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HaroldS (Arizona)
Posts: 906

Posted:

In another post JimR wrote:
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I've looked in vain for such a clause in my CC&Rs. Could you tell me what section it might be under? I did find one in mine that states: The failure of the Association or an Owner to take enforcement action with respect to a violation of the Project Documents shall not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the Project Documents IN THE FUTURE.(My emphasis) That doesn't sound very grandfatherly to me. It does sound like they can - even years later - enforce the documents should they want to. Thanks for your input. Harold

RogerB (Colorado)
Posts: 5,067

Posted:

HaroldS, the item you referred to in your Declaration allows enforcement a current violation of the same type which previously was not enforced on an old violation. You are correct this is not a "grandfather clause".

I think JimR may have been referring to a state statute which does not allow enforcement of a violation for which the governing body has been aware of for a period of time (I think it is 1 year in Colorado).

RogerB

CharlesC (Washington)
Posts: 9

Posted:

This is an interesting topic of conversation. In our development, the pre-existing HOA board members initiated a grandfather clause in 2001 whereby a series of major violations including inappropriate fence style and location were grandfathered. The HOA then 2 years later starts to initiate enforcement proceedings relating to the fence style of an original homeowner of the development (emphasis owner was present prior to grandfather clause of 2001). The homeowner states the fence was grandfathered in and makes mention of the approx. 10 owners with similiar issues (albeit astethically greater)all of which with similiar original ownerships (present prior to the grandfather clause)who have not received similiar enforcement notices. Thereafter, the notices did not go out to some of said owners until after foreclosure litigation commenced. Does this resemble a fair enforcement proceeding or double standard enforcement?

RogerB (Colorado)
Posts: 5,067

Posted:

Charles, the board can allow a wavier under justifiable conditions. They may have "grandfathered" violations which had knowingly existed for over a year. But that gives no basis for new violations or later replacement of a grandfathered violation (such as replacing a fence which was not approved by the ARC or does not comply with restrictions).

HOA boards have no authority to change their Declaration. And they should enforce the covenants no matter what previous boards did. That includes any desired exterior change for every homeowner no matter how long they have lived there.

When appropriate and convenient it could be a good idea for the board to advise owners that the CC&Rs are being enforced. But it is not necessary when the owner is required to get approval from the Architectural Committee prior to making changes to the exterior of their property. The ARC requirements provide fair treatment to all owners, protect property values, and provide for legal enforcement.

I often have heard the argument of a double standard from owners in violation. It is not a valid argument. Owners who are too ego driven, or ignorant of their Covenants (their legal agreements), to correct a violation when properly advised learn an expensive lesson when court action is required.

RogerB

LuciusD
Posts: 139

Posted:

There is an alternative that has not been discussed. Namely, AMENDMENT of the CCR's.
Board members do not have the authority (generally) to change the CCR's, but the membership does or should have.
A board has a duty to enforcement. However, I maintain a board has a *higher* duty to the membership that elected them. When the majority of the membership does not support enforcement of some provision, it is time to fix the CCR's. The board has the responsibility to lead the community in arriving at a majority solution, not trying to exact penalties for past enfractions.

BrianB (California)
Posts: 2,820

Posted:

we have a grandfather clause in ours that (more or less) states: if no suit to engender the project has been filed before the completion of the project, then the project shall be deemed as approved by the board and no further suite shall be taken.

basically, a grandfather clause on steroids! If the board doesn't get a complaint, or try to stop the project before it is finished, then tough luck. The board has to live with it.

needless to say, all my projects are done in 24 hours or less. There isn't any way anyone can complain in that length of time.

HaroldS (Arizona)
Posts: 906

Posted:

Wow that is great! Never saw one that liberal. If nothing else, it promotes projects getting done fast and not strung out as sometimes happens. Thanks for sharing. Harold

DonnaS (Tennessee)
Posts: 5,671

Posted:

In our state, Florida, grandfathering is allowed under certain circumstances, for condos but not for H.O.A.s Grandfathering creates two (2) classes of ownership which under most Documents, you cannot have. Donna S.

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