declarants and grandfather clauses

We are a small HOA of 57 homes.

I am trying to gather a defenition of grandfather clauses with declarants. Here is the reason:

We have been a HOA for 2 years now. Our declarants are vague, however
one declarant that has been an original one past down from the developer/bilder/ is that 'BOATS/TRAILERS/MOTOR HOMES, MAY BE PERMITTED ONLY ON THE BACK 30' OF YOUR PROPERTY.'.

Now the BOD along w/ the declarant committee would like to abolish this declarant, and force the owners of said items to either store them or put in the garage. I am curious if they have the power to do it, or is this grandfathered. My reason is this: We all knew 57 honmes upon buying in this development that you were PERMITTED these items. Just suppose Mr and Mrs smith were debating about 2 homes. One development said NO boats, etc...Ours said Yes, but in the rear of property. Our development was more expensive, however Mr and Mrs smith bought here, for that sole purpose!!! Now 1 year later, they may be forced to store these items, at their expense. What if they do not have the funds for it? Do they have to sell them, or worse yet move? The BOD would like to take this to a vote and if accepted by 51% it is approved.

Is this protected by a grandfather clause? Now before you answer.....

We also had another situation w/ fences. Our original restrictions stated "fences are permitted with the advance written approval of the Declarant" The developer/builder/real estate gave different homeowners different approvals. One he said, ONLY white vinyl is to be used in this development, Then another wooden split rail is to be used, , another wooden shadow box. The only conformity he used was only in the 2nd half of the home and back yard. Not front yard. So now we have a hodgepodge of fences. We wanted to create a standard of design for the types of fences, however after we created it and submitted to an attorney, he said 'Since other homes in the development already have and were approved different types of fences, you the BOD/architech committee and such are legally not allowed to put restrictions upon new fences being errected". They are grandfathered. And to make it worse, is that if mr. x puts up a wood fence, and your standards are now white vinyl, and you send him a non compliance letter, he may sue you and will win, as there is already another wood fence in neighborhood.

Help me please with this.

What do your governing documents say? What State?

Note: Declarants are typically the builders/developers of the Association and Declarations are typically the main piece of your governing documents. I think you have them confused.

Brad,
thank you for your response, however I am a bit confused. First and foremost, I personally do not own a boat/trailer/camper, and I am on the BOD.
I was aware that the BOD is NOT permitted to change or ammend the Restrictions and our declaration of restrictions state that we have to have 51% vote to do this. What I am confused about is HOW can you buy an expensive home, these homes are 400,000+ and have permission originally and all homeowners know about this going into this development, and then 1 year later if 29 of our 57 homeowners say yes to this ammendment, then sorry you loose you have to move and pay for your items to be stored? I would fight and say, I wouldn't of moved in here if I wasn't able to have these items. That is what I am asking about grandfathering. Shouldn't this also be grandfathered?

Now onto the fences. I see what you said about the fences already excisitng being grandfathered, however, I must not of made myself clear. The atty told us point blank, that we can NEVER ammend or penalitize a homeowner, either excisting, or newly errected if it is of the material that is already in this neighborhood. We do NOT have chain link fences of any type, so if that is being errected, we do have permission to act on that, but he said, it's almost a moot point, want a fence do what you want,and the BOD cannot do a thing to you.

Hi Mary:

I guess I would have one question: why would people buy in a commmunity that allows the Boats/Trailers/Motor homes and then want to restrict them suddenly?

One thing that might be able to be done: to require screening...the HOA could ammend to require that they be screened by a high fence so as not to be visible from other lots, or require an outbuilding or separate garage for storage. That would need to be checked out per your city/county code, to see what the setbacks are on the lot (probably not within 10 feet of back or side property lines) as well as how high a fence could be allowed (although the city/county may allow owners to apply for a variance). That could be a way to walk a "middle ground" between the rights of the boat/trailer/rv owners and those who suddenly don't want to see them.

It would not seem fair to outlaw them, when both boat/trailer/rv owners and non-owners bought with the understanding that these were allowed. Not everything that is legal, is fair.

JPM

Mary1 My advise if I were you would be this. The BOD must have had complaints about the Boats to be start with (in writing and not verble) so the BOD should "pole" all your owners as too how they feel about the Boat situation and if you find you have enough owners against the boats then I would send out a amendment to your docs asking them to vote on the change. Remember your docs are not cast in stone and if the majority want change, make it happen. All owners have a vested interest association and all should have a say. Majority rules like it or not. Good luck.