Grandfathered Property Rights: What You Need To Know

Buying, owning, and leasing property in Washington comes with a host of legal obligations. Many parcels of real property in Washington are also subject to restrictions at the local, state, and federal levels. Then, there are contractual obligations and restrictions, which may exist under contracts ranging from lease agreements to homeowners’ association (HOA) covenants.

As a property owner or tenant, understanding how the law applies to your property is important; so is understanding any pertinent contractual provisions and how they apply. In this regard, one question that we see fairly frequently has to do with the “grandfathering” of rights regardingproperty-related laws, ordinances, and restrictions.

What Is a “Grandfathered” Property Right?

The term “grandfather” is not strictly a legal term, although it does occasionally appear in some laws, regulations, and ordinances. For example, Section 9.41.300 of the Revised Code of Washington (RCW), which regulates the sale of firearms and other weapons by businesses in Washington, states in part:

“Cities, towns, and counties may restrict the location of a business selling firearms to not less than five hundred feet from primary or secondary school grounds, if the business has a storefront, has hours during which it is open for business, and posts advertisements or signs observable to passersby that firearms are available for sale. A business selling firearms that exists as of the date a restriction is enacted under this subsection . . . shall be grandfathered according to existing law.”

Section 9.41.300 does not define what it means for a business to be “grandfathered.” However, in colloquial usage, this term means that an individual or business is not subject to a newly-enacted law, regulation, or ordinance, but instead is permitted to continue complying with pre-existing (and typically less-restrictive) legal authority.

Grandfathering clauses are typically designed to preserve the property rights of individuals and businesses who would otherwise be adversely affected or for whom the enforcement of the new law, regulation, or ordinance would amount to a “taking” under the federal constitutional principle of condemnation. For example, under Section 9.41.300, forcing pre-existing businesses to move in order to comply with the law would potentially lead to direct financial losses and liability under its loan or lease agreement for the property. The law’s grandfather clause was most likely designed to avoid the deprivation of these businesses’ property. As a result, while Section 9.41.300 is ostensibly a firearms regulation statute, its grandfathering provision has to do with the protection of business owners’ property rights.

When Do Grandfathered Property Rights Exist in Washington?

As is the case with Section 9.41.300, some grandfathered property rights exist under Washington law. However, these statutory rights are relatively few and far between; and, since many property-related matters (e.g., zoning and land use matters) are handled at the local level, it is more likely for such clauses to exist on a county-by-county basis.

In order to determine whether a particular property right is grandfathered in Tacoma, for example, it would be necessary to examine the pertinent Pierce County ordinances in addition to reviewing any pertinent provisions of the RCW. In some cases, even if no statutory or regulatory grandfather clause exists, it may be possible to obtain a waiver or variance in order to preserve pre-existing property rights. Some examples of circumstances in which grandfathered rights may apply or be available include:

• The property owner has a pre-existing right to use its property for a specific purpose, and a law, regulation, or ordinance seeks to prohibit such use;
• A new law, regulation, or ordinance makes it significantly more expensive to use or maintain a parcel of real property; and,
• A new law, regulation, or ordinance grants rights to another entity (e.g., an easement to install power lines over or under the property), and these rights would substantially interfere with the property owner’s pre-existing rights.

In terms of contractual property rights, it will be necessary to review the terms of the agreement at issue in order to determine whether and to what extent any rights may be grandfathered. For example, if a commercial lessee uses its leased premises for an unauthorized purpose, it will be necessary to review the lease agreement to determine when – if ever – the lessor loses the ability to enforce the pertinent provision of the agreement.

Similarly, in the case of a homeowner who makes an improvement that is non-compliant with HOA guidelines, it would be necessary to review the HOA covenants to determine if the HOA loses its enforcement authority if it does not act within a specific period of time. Such provisions are not necessarily common. Even when they exist, they frequently include carve-outs for issues that were fraudulently concealed or that could not have been discovered with reasonable diligence.

If Your Property Rights Are Not Grandfathered, What Other Options Do You Have?

Let’s say your property rights are being threatened by a new law, regulation, or ordinance, and let’s assume that your rights will not be grandfathered. What other options might you have available?

As with the determination of whether grandfathered rights exist, determining what alternatives might exist requires a case-by-case examination as well. In some cases, there will be no other options, and the property owner will be forced to comply with the new law, regulation, or ordinance as it is enacted. However, in some cases, it may be possible to challenge the enforcement of a new law, regulation, or ordinance as an unconstitutional taking in violation of the Just Compensation Clause of the Fifth Amendment.

Under the Just Compensation Clause, the government cannot “take” private property for public use without the payment of just compensation. When a taking involves the deprivation of property rights, it is generally referred to as “inverse condemnation.” Challenging an inverse condemnation presents a number of challenges, but it can be done in appropriate cases. A successful challenge may either result in an effective grandfathering of the property owner’s existing rights or the payment of just compensation as required by the Fifth Amendment.

Speak with a Knowledgeable Lawyer at Bolan Law Group.

These are complicated issues, and understanding your legal rights requires a thorough assessment of the particular circumstances at hand. To schedule a confidential initial consultation with the trusted legal team at Bolan Law Group., please call us directly or inquire online today.