Black’s Law Dictionary defines “grandfathering” or a "grandfather clause" as “an exception to a restriction that allows all those already doing something to continue doing it even if they would be stopped by the new restriction.”
New Rules. If, for example, the board adopted a rule that pets over 50 pounds were prohibited, the board could make an exception for existing oversized pets. Therefore, the owner of a 75 pound dog who resides in the development prior to the adoption of the restriction could keep the pet. However once the pet died, the next pet would have to comply with the new restriction.
Existing Rules. The same is true for existing rules. If a rule has not been enforced by prior boards, a new board may have no choice but to grandfather existing violations and begin enforcing new violations only. If the board plans to enforce a rule that had previously been neglected, it needs to give written notice to the membership of its intentions.
CC&R Amendments. CC&R amendments approved by the membership that create new restrictions can allow existing conditions to continue but are not required to do so. (Villa de Las Palmas v. Terifaj.) For example, members could, due to nuisance smoke, health issues, and fire danger, amend the CC&Rs to prohibit smoking in units. Existing smokers would then have to use designated areas outside the building to smoke their cigarettes/cigars/marijuana.
Historical Context. The term “grandfathering” is no longer used by some because it is derived from racist Jim Crow-era voter suppression laws in the South that required voters to pass literacy tests or meet other voter qualifications but which exempted men who were the descendants of men who were eligible to vote before 1867. These laws effectively disenfranchised formerly enslaved men and Black voters. An acceptable alternative is the term “legacy status.”
Recommendation: Because of the potential litigation that can arise of these issues, boards should seek legal counsel before taking action.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.