HOAleader.com - Tip of the Week - October 18, 2019
Published: Fri, 10/18/19
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The Case of the Grandfathered Mish-Mash of HOA Docks
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In this week's tip, we answer an HOAleader.com reader's question about whether what would be violations under governing documents — but that have been grandfathered — can be changed. We also discuss a comment from another reader on the same discussion forum thread over the mish-mash of dock styles in the community as a result of grandfathering coupled with the failure to enforce provisions related to dock construction.
Our experts think the true problem in the case of the disorganized docks is inconsistent enforcement. "I think the question asks about grandfathering versus the real issue, which is selective enforcement," contends Frank Simone, general counsel at KW Property Management in Miami. Simone is on the board of his own condo association, but he doesn't represent or advise community associations in his legal role at the management company.
"With grandfathering, you buy a property with certain rules and declarations, and then they change," he explains. "Because you owned before the changes, you have inherent rights. For example, if you bought a unit with a pet and that was allowed, and then the board changes that provision, you're grandfathered in because boards can enact rules only prospectively, not retrospectively. The issue here is selective enforcement."
Whether you can undo grandfathering depends on your actual rights. "That depends on what's being grandfathered," reports Edward Hoffman Jr., founder of Barrow Hoffman, a law firm based in Warminster, Pa., who has represented community associations for more than 15 years. "A covenant follows the land, and you can't reverse something that's been grandfathered into the restrictive covenant unless you reverse the covenant itself.
"In the reader's situation with the docks, it's a complicated issue that pertains to nonenforcement of covenants more than reversing grandfathering," adds Hoffman. "You've created a situation where noncompliance is the rule. If you're telling people building new docks that others are grandfathered because they preceded the new provisions, that's fine. But if people don't build to the new provisions, I think the issue becomes that at some point, the covenant itself becomes irrelevant."
That's what happens in Nevada. "We've seen in state supreme court decisions and in the lower courts here in Nevada that if you're aware of an architectural defect and you don't do something about it within a year, as time passes by, you'll have a hard time getting a court to require a homeowner to undo what they've done," reports Barbara Holland, CPM, regional manager for FirstService Residential in Las Vegas. "That also applies if that person sells their home to a new buyer who doesn't know there's a problem that has existed for quite some time.
It's not absolute that the failure to enforce provisions renders those provisions unenforceable, but that's a very common outcome. Find out why, in addition to how to correct problems arising from inconsistent enforcement, in our new article: https://www.hoaleader.com/members/4001.cfm
Best regards,
Matt Humphrey
President
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