What are “Grandfathered Rights” in the Property Context?
May 09, 2018 21:19
Now and then, you’re bound to find yourself in the midst of a disagreement with your neighbor over a driveway that allegedly creeps over the property line, or an addition on your house that violates setback requirements. You may be tempted to argue that you should win because your driveway or addition was entirely in compliance with all zoning ordinances at the time the were completed, even though they have since become nonconforming under updated rules. However, this argument will likely only be successful under very narrow circumstances. You should consult with an lawyer on whether taking this sort of approach makes sense in your case.
When do Grandfathered Rights Apply?
Normally, grandfathered rights apply when you are accused of violating a government statute. You may be found exempt from the application of the current law because whatever condition of your property that would violate the new law was already in place prior to that law’s effective date. As such, your non-conforming use is “grandfathered” in as acceptable. This is where the “grandfathered rights” term comes from, although the official name of the legal claim is “non-conforming use.” However, keep in mind that the law must explicitly provide you with grandfathered rights in its text in order for you to have them. Also, it should be obvious that any violation that arises after the effective date of the new law, even on property that you purchased before that effective date, cannot be grandfathered. You should hire the experienced lawyers at Adam Leitman Bailey, P.C. in order to help you argue that you have grandfathered rights, you
Examples of Situations in Which Grandfathered Rights Apply
Using our above examples, if the ordinance provides you with access to grandfathered rights, then you will likely not be required to tear up an existing driveway and repave it so that it conforms with a new ordinance as long as it complied with all ordinances at the time it was originally paved. Likewise, the government will not require you to tear down an addition to your house because it violates current setback requirements if it complied with the requirements at the time it was built. You will also be immune from monetary penalties levied by the government. The rationale is clear: the government isn’t going to force people to make major, costly alterations to their property in order to change things that were in compliance at the time they were made.
Keep in mind that, although grandfathered rights may protect you from government penalties like having to alter your property or pay fines, it does not necessarily protect you from private legal claims brought by your neighbor. You could still owe your neighbor monetary penalties for any encroachment on their property. This will be an entirely different legal issue that must be argue separately. In any event, if you hired a lawyer to assist you with your grandfathered rights claim, they should be able to help you in the case against your neighbor, too.
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