How Property Rights Passed Down Can Save You Thousands

When it comes to purchasing or owning property, there are various legal obligations that must be considered. These obligations can differ at the federal, state, and local levels, as well as through contractual agreements such as leases or HOA covenants. As a property owner, it’s crucial to understand the laws that apply to your ownership and be aware of any contractual provisions in place. One common question that property owners have is whether their rights are “grandfathered” when it comes to property-related regulations and laws. Depending on your location and ownership situation, grandfathered property rights could potentially save you thousands of dollars. This article provides a comprehensive overview of these property rights.

What Does the Grandfather Clause Mean in Real Estate?

In the realm of real estate, the term “grandfathered property rights” refers to the exceptions or privileges that homeowners may enjoy because they owned the property before certain regulations or laws were enacted. These rights typically apply when there have been violations of regulatory codes or government statutes. If there are provisions in the law that allow for grandfathered rights, a homeowner who violated the law may be exempt from the fines and penalties that would otherwise be imposed on them.

For example, let’s consider a scenario where a homeowner’s driveway extends beyond their property line and encroaches on their neighbor’s land. In such a case, the homeowner can refer to an earlier version of the local municipal code to determine if the width of the driveway complied with the regulations at the time of construction. Similarly, if a setback area on the property encroaches on the neighbor’s land, the homeowner may argue that the setback was compliant with the local laws when the home was originally built, and thus not in violation of the current setback regulations.

See also  The Controversial Contract: Infidelity Clauses in Prenuptial Agreements

While there are legal protections in place for grandfathered property rights, it’s important to note that this argument may not be effective in a property line dispute. The extent of grandfathered property rights can also vary depending on local regulations and laws, which may change over time.

Uncovering Grandfathered Property Rights

The term “grandfather” is not a legal term per se. However, it is commonly used in ordinances, laws, and regulations. For instance, the Revised Code of Washington (RCW) contains a reference to the grandfather clause in Section 9.41.300, which pertains to businesses selling firearms. The section discusses the timeline for properties to be grandfathered.

Although the specific process for grandfathering is not outlined in the revised code, the general implication is that a business or individual can comply with preexisting laws instead of adhering to the latest ordinance or law. Grandfathering clauses are typically included in laws to protect the property rights of businesses and individuals who would otherwise be negatively impacted by new regulations.

While statutory rights related to grandfathered property rights are often challenging to find within state laws, many matters concerning property are handled at the local level. This makes it more likely to find grandfather clauses in county-level laws and regulations.

To determine whether a property right is grandfathered, the specific location of the property is a critical factor. For example, in Tacoma, Washington, property owners would need to study the Pierce County ordinances related to the specific property right in question, as well as any provisions in the RCW.

Even if no regulatory or statutory grandfather clause can be found, property owners may still have alternative options such as applying for a variance or waiver to preserve preexisting property rights. Grandfathered rights may be available if a new law significantly increases the cost of maintaining or using a property, or if a new law seeks to prohibit a certain purpose for which the property was originally intended. Additionally, if a new regulation or law grants rights to another party that interfere with existing rights, grandfathered rights may be applicable.

See also  The Crucial Importance of Time in Real Estate Contracts

When it comes to contractual property rights, the terms of the contract should be carefully reviewed to identify any potential grandfathered rights. For example, a commercial lease agreement may grant the tenant rights for a particular use of the premises, even if it is currently unauthorized by the latest rules and regulations. Homeowners may also find themselves in a similar situation if they have made improvements to their property that do not comply with current HOA guidelines. However, it’s worth noting that fraudulent concealment of HOA violations typically does not qualify for exemption under grandfathered property rights.

Ordinances and Grandfathered Rights for Homeowners

An ordinance is a law created by city or county governments. In some cases, municipalities may choose not to enforce existing ordinances when homeowners’ properties do not conform to certain requirements, such as driveway access or setback distances. This leniency is due to the existence of grandfathered rights. However, it’s important to remember that even with grandfathered rights in place, homeowners may still be considered in violation of their neighbor’s property rights and could be held legally liable for the use of the encroached property. Therefore, the homeowner would need to compensate the affected neighbor for the encroachment.

When determining the presence of grandfathered rights, it is essential to explore any available alternatives. The availability of alternatives can vary in each case. Sometimes there may be no alternatives, requiring immediate compliance with the latest laws and regulations. In other instances, challenging the enforcement of a new regulation or law may be possible under the Just Compensation Clause in the Fifth Amendment. This clause states that the government cannot take private property without providing just compensation. Cases involving deprivation of property rights are known as “inverse condemnation,” and although winning such a case can be challenging, exploring legal options is worth considering as a successful challenge can lead to the grandfathering of existing rights.

See also  Possible Outcomes in Landlord-Tenant Court Cases

Preserve Your Property Rights

If you own a property that was built many years ago, there is a possibility that you have rights that could be grandfathered even after new laws are enacted. Grandfathered rights are often available when enforcing them would require relocation or significant expenses to update the property. To determine if you may have property rights that are grandfathered in, consult local and state codes for any mentions of this term. If you require assistance in this process, consulting with a real estate lawyer is highly recommended.