M.G. from Pennsylvania writes:
Dear Mister Condo,
I have a question on “grandfathering.” Last year, I bought a unit in an 86-unit suburban, middle class townhome type community in SE Pennsylvania (we have grass and trees). It was built in 1992. A few years after building, owners were allowed to build 12′ X 16′ decks off the rear to cover over original concrete patios. The wood decks were to be of a certain design and could not be “painted or stained only a clear wood preservative could be applied.” Of course my deck was painted (or solid stain used) at minimum six years and two owners ago. Now it needs repainting. The current and intended new color would be consistent with the existing community trim colors (Ashley Grey on shutters and trim). My left door neighbor ‘stained’ his a solid almost yellow color last year while my right neighbor just did a dark brown. No one has complained about any of this. 1) Can I repaint? 2) If someone were to complain, do I have wiggle room? To refinish back to original natural wood would basically involve complete rebuilding of the deck. I’m thinking better to ask for forgiveness than permission.
Mister Condo replies:
M.G., your question isn’t so much about “grandfathering” as it is whether the sins of the father should be passed to the son. Grandfathering would be if the association previously allowed paint or stain to be used and you simply wanted to reapply it. In your case, the previous owner painted the deck in violation of the association’s architectural guidelines. To make matters worse, you have neighbors on both sides that have done the same. This is indeed a sticky wicket. Let me offer some friendly advice to help you decide what to do next.
The Board of the Association is the governing body charged with architectural compliance and rules enforcement. They would be well within their rights to insist that all unit owners comply with the architectural guidelines regarding decks set forth in the rules and by-laws many years ago. They could go unit-to-unit, citing observed violations and issuing warnings and/or fines and/or bringing suit against unit owners who didn’t comply. But, from what you have told me, that isn’t happening and may not be too likely to happen.
Ideally, they would simply change the rule and allow other choices of stain besides clear wood preservative. As you know, the various ages of the decks causes color variations any way and the clear coat will not establish uniformity, which I assume is the goal. This, again, becomes a sticky wicket because the Board may only approve two or three stain or paint variations and, once again, there will be numerous decks out of compliance. These decks could be “grandfathered” and instructed that any new paint or stain applications would have to be in compliance with the association’s new guidelines.
Or, you could just go ahead and paint your deck using your “ask for forgiveness versus permission” ideology. This may be the most practical solution, as there doesn’t seem to be any issue with the Board warning you that if you do this there will be consequences. I will say that you may face consequences if the Board cites you for non-compliance but you may have the upper hand, as they have not uniformly demanded compliance from all unit owners. All you can do is make the best decision for you based on the facts at hand. If it were I, I think I would do as you propose. Enjoy your freshly painted deck this summer! All the best!