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 grandfather existing oversize 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, his next pet would have to comply with the new restriction.
Existing Rules. The same is true for existing rules. If an existing rule has not been enforced by prior boards, 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 restriction. But there is no requirement that they do so.
No Grandfathering. Association can also choose not to grandfather existing conditions. (See Villa de Las Palmas v. Terifaj.)
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.