How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Barrister Your Own Question
Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 34845
Experience:  16 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
19958803
Type Your Legal Question Here...
Barrister is online now
A new question is answered every 9 seconds

Can the Grandfather clause be applied to homeowners

Customer Question

Can the Grandfather clause be applied to homeowners associations? We have had a gate in the fence separating our back yard and the practice green for the last 12+ years. The association is replacing all fencing in the development and will not allow the gate.
JA: Because real estate law varies from place to place, can you tell me what state the association is in?
Customer: Las Vegas, NV
JA: Has anything been filed or reported?
Customer: Probably only the Association charter 20+ years ago.
JA: Anything else you want the lawyer to know before I connect you?
Customer: What else would be important?
Submitted: 3 months ago.
Category: Legal
Expert:  Barrister replied 3 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

.

Can the Grandfather clause be applied to homeowners associations?

.

The problem with this is that HOAs are administrative organizations, not criminal or civil ones.. So when a homeowner violates a rule or CCR, it is a brand new violation every day that it exists. So a statute of limitations never runs on a Board enforcing the rules for violations.

.

With that said, there are some equitable defenses that an owner could use to defend if this got to a point where the HOA fined and then filed suit to collect. The owner could argue "Laches" which is a legal doctrine that says if X is aware of a violation and doesn't take any action to enforce their authority to penalize Y for violating it, then they eventually lose that right. A very similar doctrine is "waiver". Another equitable doctrine is "detrimental reliance" where if X took a position (or failed to object) to something Y was doing, then X is then later prevented from changing that position if Y would be "injured" by them doing so. (i.e. taking down the gate)

.

So you can fight them, but it really depends on how far you are willing to take it considering that legally, every day the violation exists is a new violation and all owners agreed to be bound by the rules, Bylaws and CCRs when they bought into the neighborhood..

.

It might be easier to just take it down... leave it down for a few weeks, and then quietly reinstall it..

.

.

thanks

Barrister

Customer: replied 3 months ago.
The president of the board of directors of the association has informed me that if we put a date in the new fence they would remove the panel with the gate reinstall a new panel and we would be charged
Expert:  Barrister replied 3 months ago.

Ok, then you would be kind of rolling the dice here if you did so that they wouldn't actually follow up on their threats..

.

I can only tell you that from a purely legal perspective, you are in violation of the rules if they prohibit you installing a gate without approval and you have one or install one later..

.

But whether they would actually come after you for doing so, or would continue to ignore it as they have done in the past, I can't say..

.

.

thanks

Barrister