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 the new restriction would stop them.”
New Rules. If, for example, the board adopted a rule that pets over 50 pounds were prohibited, the board could grandfather existing oversized pets. Therefore, the owner of a 75-pound dog who lived in the development prior to the adoption of the restriction could keep the pet. However, once the pet died, his next pet would have to comply with the new restriction.
Existing Rules. The same is true for existing rules. If prior boards have not enforced an existing rule, a new board may have no choice but to grandfather existing violations and begin enforcing any new violations. 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 also grandfather existing conditions that would otherwise be a violation under the new restrictions. But there is no requirement for them to do so.
No Grandfathering. Boards can choose not to grandfather existing conditions. In a unanimous decision in Villa de Las Palmas v. Terifaj, the California Supreme Court ruled that CC&R amendments apply to all owners, regardless of when they purchased their units. Terifaj bought into a condominium complex with her dog even though she knew there was an unwritten rule prohibiting pets. After repeated warnings and fines, the association sued Terifaj. The trial court denied the association's motion for a preliminary injunction and ordered the case to nonbinding arbitration. In the interim, the membership amended the CC&Rs to add a no-pet restriction. Based on the amended CC&Rs, the Association filed an amended complaint alleging the same causes of action and seeking the same relief as the original complaint. Following a bench trial, the court ruled in favor of the association. Terifaj appealed. The Court of Appeal ruled that the amendment was valid and enforceable. Terifaj appealed to the California Supreme Court and again lost. The Court ruled that new restrictions, i.e., CC&R amendments, apply to all owners, regardless of when they bought their units. The Court reasoned that limiting the enforcement of amendments would, in effect, give an owner veto power over them.
NOTE: The CC&Rs, in this case, were amended before the enactment of Civil Code § 4715. As a result, the ruling does not give associations the right to amend their documents to ban pets.
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