grandfathered rights

Understanding “Grandfathered Rights”

What are these so called grandfathered rights? When facing a property dispute, many astute homeowners will look up the local ordinances that govern the subject property to defend their position.

For example, if the location of a homeowner’s driveway crosses a property line and encroaches onto a neighbor’s land, the homeowner may look to a prior version of the municipal code to figure out whether or not the width of the driveway was proper when it was constructed.

Or if a homeowner’s setback area spills into the neighbor’s property, the homeowner may check to see whether or not the setback was in compliance at the time the home was built.

In either situation, the homeowner may come to the conclusion that the encroachment into the neighbor’s property was justified because in both cases, the construction did not violate the municipal code. The homeowners will then argue that his or her rights were “grandfathered in.”

Unfortunately, that argument does not get them very far in the context of a property line dispute.

Grandfathered rights generally apply in the context of government statute or regulatory code violations. Depending on whether there are provisions allowing “grandfathered rights”, these homeowners may be exempt from the current law’s effect because the circumstances that would give rise to a current-day violation already existed before the new law’s effective date.

Where the ordinance provides the homeowner grandfathered rights:

If a homeowner has a driveway that does not conform with the access requirements in the present-day municipal ordinance, it’s possible the municipality will not require the homeowner to remove the existing driveway and repave a new one that conforms with present-day building requirements.

Likewise, if a homeowner’s side setback is too close to the neighboring property under the present-day ordinance, it’s possible the municipality will not require the homeowner to tear down one side of the house to conform with the modern setback rules.

In both situations, the homeowners may be permitted to maintain the nonconforming driveway and the nonconforming setback without being penalized by the municipality because they have “grandfathered rights” that exempt them from the current laws. That does not necessarily mean, however, they have not violated their neighbors’ existing property rights. They may still be legally liable for their use or exclusive possession of the neighbor’s property and will be required to pay for their respective encroachments.

Please note that grandfathered property rights is not a legal term.   In reality, officials at the Department of Building and Safety refer to these rights as “non-conforming” use, which is a more official way of referring to what is commonly called “grandfathered rights.”

At Schorr Law, we are experienced in handling property line disputes and  providing counsel on matters involving real property property sales, purchases, and leases. To see if you qualify for a free 30-minute consultation regarding your matter, please contact us. Email: | Call: (310) 954-1877 | Text us: (323) 487-7533

By: Valerie Li.