Grandfathering

The myth of the automatic exemption

Board members often assume an old violation, a fence built without approval, a shed past the setback line, becomes permanently protected once enough time passes. That belief has no legal foundation this course could verify. No source sets a trigger, not a sale of the property, not a repaint, not a fixed number of years, after which a violation becomes untouchable. Nor does a rule going unenforced for years automatically kill it. Whatever "grandfathered" means for your community lives in one place: your own declaration or rules, if they use that word at all.

The tool that actually exists: prospective enforcement

What courts have recognized is narrower and more useful than a permanent exemption. A board can start enforcing a restriction it previously let slide, as long as the new enforcement applies only to violations going forward, and only after every owner gets clear written notice that this is happening.

A board that enforces a restriction only prospectively, after written notice that past violations will be tolerated but future ones will not, is not committing "selective and arbitrary" enforcement, even where earlier violations were left standing.

Source: Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Assn., Florida District Court of Appeal

Why "we let it slide" is not the same as safe

Skip the notice step and the board's exposure is real. In White Egret Condominium, Inc. v. Franklin, Florida's Supreme Court refused to enforce a no-children restriction against one family after finding the association had been "tolerating children residing in other units" all along. This is selective enforcement, and it is the actual risk hiding behind "it's grandfathered," not a legal shield. Two related, narrower defenses, waiver and estoppel, require more than one missed enforcement action; they turn on a pattern of conduct or a specific promise an owner relied on.

What to check before you call something grandfathered

Start with the document itself. Does your declaration or rules use the word "grandfathered," or describe an exemption for existing conditions, anywhere at all? If yes, that language controls, not general practice. If no, you are looking at a plain prospective enforcement question: has the board given every owner clear written notice of what will change and when. Whether any statute in your state adds its own notice requirement on top of that varies; check your state's association statute.