The term “grandfathered clause” has a more formal side that states “lawful prior non-conforming use.” You often hear this phrase thrown around when discussing property ownership or real estate issues.
Grandfathered property rights is not a legal term nor is there an obligation by the court to settle cases accordingly.
What is a grandfather clause?
When used in property ownership, a grandfather clause refers to an existing issue that is out of compliance with local ordinances, by-laws or construction standards. This is often the case in an older home where the wiring or plumbing does not meet the current building codes. If the home is still structurally sound and there are no dangers associated with the defect, the home could receive a pass on meeting current standards and get “grandfathered in.”
Who can challenge a grandfather clause?
You may encounter a grandfather clause situation with property boundaries or if the house is in need of repair and does not meet code requirements. If there is a shed or fence on a property that is too close to the property line, you could have a potential challenge on your hands. Situations involving these grandfather clauses are unique, so there is no definitive answer as to who has the law on their side. By-law offices, inspectors and real estate attorneys typically weigh in after looking at the history of the property.
The court will take into account the records on the property, as well as all the facts for both sides. Property law is often complex, and grandfather clause situations can make things more difficult to resolve.