Grandfathering in

Started by BarbaraS • 5 replies • 1950 views

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BarbaraS (New Mexico)
Posts: 49

Posted:

Our present,20-year-old covenants limit pets to one 20-pound dog. We have an old-time resident who now has two dogs. A new owner has moved in with two dogs, saying she was never shown the covenants and did not know of the restrictions. Our BOD may be "whimpy" but does not want to make either of them get rid of one of their pets. We are in the process of updating our covenants. Is there a way we can grandfather these two in but enforce the one-dog covenant in the future? We put the one-dog regulation to a referendum of the members, but achieved the 75% requirement only through proxies which gave the BOD the right to vote on the referendum. This gave the BOD an additional ten votes out of a possible 22. The majority of the BOD voted to retain the one-dog rule in the covenant revision. Will we have a problem with this? Your help appreciated.

RogerB (Colorado)
Posts: 5,067

Posted:

Barbara, if you are not changing the restriction on dogs, grandfathering would not apply. Since you are planning to amend the Covenants why don't you want to change this restriction since you want to allow these people to have two dogs? Your Board's choice is to either enforce restrictions or chose not to enforce and suffer any consequences.

BarbaraS (New Mexico)
Posts: 49

Posted:

Roger, Thanks for your reply. I am a little worried about this. If we do not change the covenant restriction to allow two dogs, would that mean that future owners would be able to have two dogs because of the lack of enforcement of the restriction?

RogerB (Colorado)
Posts: 5,067

Posted:

No Barbara. The restriction still applies. However, it does mean the Board is knowingly not enforcing restrictions. This wrongdoing puts those Board members at risk of being sued and they could be liable for their legal costs and those of the party(s) suing.

BarbaraS (New Mexico)
Posts: 49

Posted:

Roger - What a dilema! Since the original vote from the members themselves (not the proxies) was tied on two of the pet proposals - would it not be wise to submit this one ruling back to the membership asking them to vote on one or the other? Since each member of the BOD had also a vote as a unit owner, it seems that now each of us has ten additional votes - is that fair? Perhaps I'm grasping at straws here.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You may want to find out what the local laws are in regards to pet ownership. There could be a conflict with local laws and the CC&R's. If so, then the local laws override. The local laws could limit issues such as leash laws, type of dog, or how many. Call the local city/county shelter to find out about the laws in your area regarding pets.
The excuse that the owner didn't get the CC&R's doesn't "fly". It is viewed as the BUYER'S RESPONSIBILITY to be informed about the CC&R's. The CC&R's are PUBLIC documents located at the County courthouse records department. Unfornately, for the owner, they can't use the "ignorance" excuse even if they never got a copy. Ironically, the document they signed to be part of the HOA states: "I have recieved a copy/or am aware of the CC&R's and agree to abide by them". Not exact statement but the overall effect. Which means they signed a contract they didn't read the terms of if they weren't informed.
The HOA can change the rules to accept more than one pet if they choose. It will depend mostly on the majority vote of owners on how they feel. There could be a majority who agree to more than 1 pet or it could be no limit at all. The HOA rules are whatever the majority of homeowner's want them to be. The rules and regulations of a HOA are a "living" document that changes as much as the whim and culture of the owners themselves.

Former HOA President

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