When an association amends its existing declaration, the rights of existing owners must be considered.
A declaration of condominium may not contain all the property restrictions that owners want, especially as a community changes over time. Although declarations may be amended to establish new constraints, amendments cannot always be enforced against everyone.
For example, there may be no restrictions against boats in the parking lot or pets on the premises. If no other restriction exists (such as local zoning ordinances), owners will have the right to keep a small boat in the parking lot or have pets on the premises.
If too many owners take advantage of the absence of such restrictions, other owners may feel that the boats in the parking lot are detrimental to their property values or that the pets create a nuisance. However, a new prohibition against boats in the parking lot or pets on the premises will likely be applied only against future violators.
An amendment to a declaration should specify that owners who have been using the property in the now-prohibited manner may legally ignore the amendment. This is known as “grandfathering” or granting “grandfather” status. The amendment may not infringe the rights of owners who acquired their unit relying on the original declaration. This is especially true when the amendment may cause harm or prejudice to the owners.
Over time, as the owners with grandfather status move away, there will be fewer instances in which the restriction may be legally ignored, and the problem will disappear. In the case of a pet, an owner’s grandfather status may last only for the life of the animal.
At the time of adopting an amendment, the association should make a list of all owners entitled to grandfather status. This list should be kept with association records.
If the association does not make such a list, unit owners should write to the association, stating that they are entitled to written recognition of their grandfather status. If the association concurs, this should prevent disputes in later years (after members of the board have changed) about whether they are included in the grandfather clause.
If the association refuses to acknowledge an owner’s grandfather status, or if a dispute later arises about enforcement of a new restriction, such disputes would likely be submitted to mandatory non-binding arbitration. Readers should remember that all situations have their unique aspects, and they should seek legal counsel if they are in doubt.
Note 1 – The foregoing article was published by the Community Associations Institute in the October/November 1993 issue of Community Living of Florida
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