In the community association setting, we often hear about certain things, people or practices being “grandfathered in” which basically means that new restrictions cannot apply in those instances.
The term “grandfather clause” has an ignominious past; it arose as a constitutional device used by some Southern states to deny voting rights to black Americans between 1895 and 1910 by exempting those people whose lineal descendants had enjoyed the right to vote prior to 1866 from having to comply with latter-day voting requirements tied to education, income and real property ownership.
In today’s parlance, someone can be “grandfathered in” when it comes to owning a pet, driving a commercial vehicle, leasing out a home and more.
Why does the notion of grandfathering create strong emotions on both sides of the equation?
For boards and association members wishing to enforce new restrictions which they feel are in the best interests of the community, it is important to know that the rules will apply equally to all. For people who bought in a community without certain restrictions, it can be unsettling to learn that your dog, vehicle or tenant is no longer welcomed.
In Florida several years ago, the Condominium Act was changed to provide that changes to leasing restrictions would only apply to existing owners who consented to such leasing amendment and to new owners who took title to their property after such amendment had already been recorded in the public records. Naturally, that legislative change has been met with some consternation over the years as boards and managers struggle with the administrative and practical challenges associated with some owners being restricted in terms of their ability to lease while others are not.
One of the biggest hurdles and misunderstandings associated with grandfathering is the time period during which the exemption should exist. For example, if a new pet restriction is passed, should current pet owners be entitled to keep only their current pet for its natural life expectancy or does that mean that subsequent pets can be maintained in the unit as well? The same question applies to rentals, vehicles and other use restrictions. Often people believe that it is the unit which is grandfathered and not a particular condition or situation. Pets, lease agreements and vehicles all have a “life span” of sorts.
Be sure to speak to your association attorney about how grandfathering should be handled when new restrictions are being considered in your community.