The term ‘grandfathering’ is commonly used in many different circumstances when dealing with a possible exemption to a rule, requirement, or change to any existing conditions or standards that apply to a variety of situations such as businesses activities or occupational requirement. Often employees or tradepersons find themselves in a situation where they may become exempt to a new professional requirement by the act of being grandfathered-in by means of previously acceptable conditions. In fact, there are a wide variety of circumstances where the grandfathering of a pre-existing condition or requirement is applicable. However for the purposes of this article, a common situation where the application of a grandfathering-in of a structure, use or occupancy when dealing with zoning codes, land development regulations, and permit requirements will be reviewed. The term grandfathering is often applied to address uses, activities, and structures that may be adversely affected by the adoption of new restrictive ordinances, land-use designations, or code requirements.
The term grandfathering or grandfather clause has been cited as having its origins in the amendments to constitutional provisions of many southern U.S. states around the late nineteenth century. Black’s Law Dictionary and West’s Encyclopedia of American Law explains that the original purpose of the ‘Grandfather Clause’ was to keep newly freed African-Americans and certain groups of people from voting, mainly in the southern U.S states. Theses clauses denied voter registration to people who didn’t meet certain requirements unless their grandfathers had served in the Confederate Army therefore if a person’s grandfather could vote, so could they. In 1915 the U. S. Supreme Court declared these types of clauses unconstitutional; however, the term grandfathering is still a commonly accepted term when addressing exemption provisions for zoning regulations. Today, grandfathering of a structure, business activity or use provides an exemption from current codes or other newly adopted regulations that would make it otherwise prohibited or fail to meet current codes because it was lawfully in place prior to any change or requirement affecting its existence, use or lawfulness. When a property or use is grandfathered-in, it is said to be non-conforming to any current codes or requirements. There is often a misconception that just the prior existence of a structure or activity or other use is okay if built or in place prior to the adoption of a related code or ordinance, however, the key to grandfathering is that the affected area or item of concern must have been lawfully in place prior to any change or prohibition. Additionally, there are laws that can be adopted for life-safety reasons that would not allow the continuance of any use or structure that is determined to be dangerous just because it has always been so or an new law may contain an amortization period where affected persons are put on noticed of a certain time-frame for when a use must conform to current codes or otherwise be ceased to exist.
Concerns for existing structures
It is important for owners of older properties to check with their local building and zoning departments prior to pursuing any construction or repair activities, not only to ensure what permit requirements may be necessary, if any, but also to obtain knowledge of any pre-existing conditions or new requirements that may affect the project or use. Any use or structure that does not conform to current codes or requirements for similar uses or structures would be considered non-conforming or that which does not conform. For example, in Florida, there are windstorm requirements for the installation of shutters or safety approved windows for new construction due to the changes in the Florida building code due to need for building safety from hurricane force winds and related effects of these storms. For an existing structure with older windows that do not conform to the latest safety standards, if the replacement of these windows becomes necessary, in order to meet this requirement, it may be required to upgrade all the windows or provide proper window safety coverings installed over the windows on the entire structure. Because of the life-safety and property protection nature of this requirement the existing windows on your property may not be grandfathered-in due to this requirement. However, the local building department would be able to advise if an exemption to this requirement would be allowed for only minor repairs for broken window panes or a replacement of only one window is needed.
Another scenario could involve the repair of an existing accessory structure, such as a fence, where there has been a change in permit requirements or new restrictions limiting size or location of new fences, the grandfathering provision may also not apply. Just because the fence may already be in existence and previously permitted, modifications or major repair may constitute adherence to any new regulations or requirements adopted by a local jurisdiction, change in building or zoning code or sometimes even a local neighborhood restriction as an architectural guideline or neighborhood enhancement standard. Often when existing structures are not in conformance with current code, such as one that may restrict the location of new fences in front yards, when an existing fences that are located in front yard need to be replaced, this may cause this existing fences to now be required to conform to the current neighborhood standards. Unless there is a minor repair provision, usually repairs to an existing structure that exceeds a preset percentage of the structure, such as a certain value of the work such as exceeding 50% or more or the area of the structure or value of the work or if a new building or zoning permit is required will require the structure to now be brought into conformance with current code requirements. This is how a neighborhood progresses towards all properties conforming to current neighborhood standards by requiring adherence to current codes when it makes sense and only exempting those properties that truly remain grandfathered-in by maintaining their nonconforming status either because no major repair or modifications requiring permits where necessary or changes to the a structure or use have remained within prescribed limitations. Be very wary of any contractor that tells you that a project does not require obtaining any permits or local jurisdiction approvals or homeowner association reviews unless it is for minor repairs or you are absolutely sure that it does not because if it does or it may affect a grandfathering status, it may cost you more money and headache in the long run if it is to be corrected after the fact.
Scenario of a common dilemma
A common area of concern occurs when a new property owner is faced with the dilemma of dealing with work that was previously done without permits to a property that they now own. When parts of real property such as an accessory structure like a shed or a property addition has been constructed without permits and required inspections it can be a real headache, especially if the work does not meet current code requirements or even worse, if it is not allowed or in the wrong place. This often occurs because the previous owner or owner at the time that the work was performed failed to obtain permits for the work and therefore the construction was never reviewed by all applicable agencies such as building, zoning, environmental, and engineering. Even though the work was done prior to a new or current owners awareness, it would not be grandfathered in because it was not originally done lawfully. Often property owners who find themselves in this type of situation may feel that the lack of a permit should be overlooked because whatever was done may not be thought to bother anyone else or that it does not serve any substantial purpose or protection of the general welfare to require a permit be obtained after the fact or if a long period of time has passed. However, the fact that a previous owner overlooked the responsibility to obtain a permit and required inspections does not negate the responsibility of the jurisdiction to enforce the codes once it has been made aware of the violation. To do so would be neglectful and the problem would not go away but would remain to be dealt with by a future unsuspecting purchaser or if something terrible were to happen because of poor workmanship or the unearthing of unknown consequences. In some cases, the building or zoning official may be able to provide alternative options towards bringing the property into compliance or obtaining an exception to the code requirements if a variance is sought and certain conditions are met. This is important if the problem was not self-created such as in this scenario.
The Quest for the Grandfathering Status
The need for the application of a grandfather status to a particular situation often arises when a new owner who is unaware of any problems or limitations on a property begins a home improvement project and either clears away obstructions that have concealed the construction from view, such as with overgrown landscaping or vegetation or upon the review of property survey or construction plans for the application of a new permit. Another common situation is when a change to an existing use of a property that is no longer allowed by the zoning code occurs or a new property owner applies for a use that is determined to have been previously discontinued and can no longer occur. The discovery of an existing problem may even occur upon property visits by a code inspector for other violations, when inspections are performed for the permit for new home improvement work or even by obvious visual reasons where a seasoned inspector can easily see that work was done without permits. This often occurs because since un-permitted work has not been reviewed by building and zoning officials, the awareness of code requirements or zoning limitations, such as setbacks from property lines, can be easily violated without being aware. Unless a new property owner can address this issue with the previous owner or through some type of title insurance claim, they are usually faced with the unfortunate responsibility and costs of trying to correct any problems un-permitted work may cause or address an expected use of a property that will not be allowed by the zoning department. Some jurisdictions may require that any property owner who is aware of work done without permits or if a violation has already been issued be responsible to disclose same to any future or prospective purchaser of the property. For example, in the State of Florida, Chapter 162.06 of the State Statutes requires the following:
“If the owner of property that is subject to an enforcement proceeding before an enforcement board, special magistrate, or court transfers ownership of such property between the time the initial pleading was served and the time of the hearing, such owner shall (a) Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee; (b) Deliver to the prospective transferee a copy of the pleadings, notices, and other materials relating to the code enforcement proceeding received by the transferor: (c) Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding; (d) File a notice with the code enforcement official of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within 5 days after the date of the transfer. A failure to make the disclosures described in paragraphs (a), (b), and (c) before the transfer creates a rebuttable presumption of fraud. If the property is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation before the hearing is held.”
Certain state constitutions or statues may allow for a use or structure to continue if it has been in existence over a certain period of time depending on the law. An example of this would be if a state provides a statute of limitations whereby if a building code permit provision has not been enforced for the construction of a structure for more than twenty-years then a local jurisdiction cannot require the structure to be brought into current code conformance unless the jurisdiction is able to meet certain requirements that warrant such action. However, because the building codes are usually considered specifically dealing with life-safety, most work done without permits unless specifically exempt by code or statue would not be allowed to exist once discovered. The codes are not only designed to prevent harm and property damage to the general public but also to protect each and every individual from harm to themselves, family, tenants, or guests by occupying or utilizing unsafe structures.
Although code enforcement officials and inspectors are tasked with the responsibility to address possible violations for losses of nonconformance or items that are not in conformance with current codes, every situation encountered should be treated as an individual case and handled based upon its own history, facts and records. Code officials can assist with researching records, such as building permits, zoning approvals, certificates of uses or other prior board determinations to make a determination if something is or is not grandfathered-in. If a property was lawfully existing or a use was already established before a change was made to prohibit such use or construction, certain evidence such as photos, plans, and even testimonial affidavits may become very useful in assisting the local building and zoning departments to establish a legal nonconforming use or structure. Additionally, because there are always other factors, circumstances or applicable laws that may affect a determination of grandfathering, any concerns regarding the application of grandfathering should be discussed with your code enforcement official, local building and zoning department officials, municipal or county attorney and other qualified professional or counsel. There may be numerous procedural steps, exemptions, and laws that may apply to your particular situation so be sure and get all the assistance and information that you can, especially when dealing with any legal concern. It is often recommended that before the purchase of any property, that buyers obtain the services of a reliable and reputable inspection service, as well as, paying a visit to your local building and zoning departments. Some jurisdictions may offer a prospective property buyer to obtain a pre-purchase or pre-occupancy inspection for a property to determine if there are any existing liens, encumbrances, outstanding permits, violations or limitations on proposed uses.
This article was designed to provide accurate and authoritative information in regard to the subject matter covered. It was written with the understanding that the author is not engaged in rendering legal or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
The author of this article, Gerald Henry, is a Certified Code Enforcement Professional in the State of Florida who holds a Baccalaureate Degree in Criminal Justice and Graduate Certificate in Public Administration.