Thursday, May 27, 2010

Why do the rules apply to some owners and not all of them?

That is a question that is often asked whenever the rules in a community change and the issue of “grandfathering” certain existing conditions arises.

What does the term grandfathering mean when applied to rule enforcement? A grandfather clause is an exception to a rule that allows existing situations to remain in place for a time certain. Used as a verb, grandfathering means to grant such an exemption. Grandfathering often makes a new rule more palatable to existing owners with conditions that would otherwise be prohibited by the new rule. A classic example would be a new restriction against pets. Requiring existing owners with pets to remove those animals from the premises would be harsh and would certainly be met with reprisals. Allowing existing owners to keep those pets throughout the duration of the animals’ lives while prohibiting owners without pets from acquiring them will eventually result in a pet-free community with less angst in the process.

The problem arises when existing owners mistakenly believe that their units are grandfathered in and not their current condition. These folks often think they can continue to buy new pets, lease out the unit, purchase new restricted vehicles indefinitely. In fact, once the pet dies, the vehicle needs replacing or the lease expires, the new rule kicks in and applies to these owners in the same manner it applies to those owners who did not have these pre-existing conditions.

Did you know that the term “grandfathering” originated in late-19th-century legislation and constitutional amendments passed by a number of southern States which created new and discriminatory restrictions on voting, but exempted those whose ancestors (grandfathers) had the right to vote before the Civil War?


  1. Our HOA has decided to try and prevent owners from short-term renting, new minimum to be 90days, in this 3 year-old association. Our existing Master Deed allows renting as long as it is for a period greater than 2 days. We are a golfing community. Can the association vote to change the renting clause and deny existing owners the right to continue renting under the original Master Deed consitions?

  2. Within South Carolina law, rental agreement conditions are not appurtenances or easements, and therefore would be grandfathered in if a change is made.

  3. In Florida condominiums, rental rights are grandfathered in so any change to the ability to rent or the term of permitted lease agreements would only apply to those current owners who consented to the amendment or owners who take title after the amendment is recorded. The same does not hold true for HOA owners but there have been challenges in court regarding certain "vested rights" including the ability to rent and changes in the overall development scheme.

  4. A water heater broke above my condo and I found that their drain line was plumbed to my water heater drain and flooded my apartment. The HOA does not inform the buyer of grandfathered in problems and will not take responsiblity of the leak. theysay its tentent to tentent. the city inspector wont even look at it. what can I do?

  5. If you are an owner you are entitled to know the name of the association's insurance agent and to make a claim for the damage that occurred in your unit as a result of hte broken water heater. If you live in a Florida condominium, the broken water heater is treated as a casualty event and the association would be responsible for replacing any damaged drywall or damaged baseboard. You would be responsible for replacing interior items such as cabinetry, furniture, wallpaper, carpeting, etc. that was damaged unless you can prove that the owner above you or the association were negligent. I suggest you contact an attorney to handle this matter for you.