Can an Old Fence Be Grandfathered Into a New Building Code?


Old fences are often not up to code and this leaves it up to us to know how to maintain that structure so it fits into its grandfathered building code. It can get confusing. Luckily, so long as that fence is grandfathered, we don’t have to worry about updates or building codes.

You can grandfather an old fence into new building codes. It is simple and only requires a few people to be involved. Grandfathering an old fence requires a review of the fence, itself and a peak at the history of the building codes since its construction.

Procedure Of Grandfathering

To grandfather a fence into new codes, you first need to know when your fence was built and when the codes go into effect. The easiest way to learn your new codes and if your fence needs to adhere to them is by contacting a local inspector.

There are three kinds of inspectors: building inspectors, by-law officers, and real-estate lawyers. You may be required to use more than one, though often only a building inspector will be necessary.

Contacting a building inspector is as easy as finding your local Building Code Department and giving them a call. This is a good starting place because the department will be able to tell you if you will need to use the other two types of inspectors.

After you have been properly inspected there will be some paperwork involved and that’s it. Depending on the word of the inspectors you will either be successfully grandfathered in or you will know if you need to replace that fence.

Sometimes you may need to only replace or tear down part of your fence. Your inspector will tell you what needs to be done to gain the grandfather status that will allow the fence to continue existing.

When It Applies

There are a few things to keep in mind about having a fence grandfathered into new building codes.

Being successfully grandfathered does not legally excuse you from all new laws and codes. Though this will excuse you from a lot of updates you will still need to keep to date on what laws the fence must continue adhering to.

Here are a few examples:

If you are building onto a fence in a significant way you may need to bring your grandfathered area up to code.

Common examples of this are if you are replacing fence posts, are attaching some sort of structure to your fence, or putting a large structure right up against it.

Fire codes and driveway regulations are also not excused when a fence is grandfathered.

If a fence is not up to the current fire code when it is inspected, you will have to take care of it before any further action can happen. Whether this means rebuilding with treated wood or giving it a flame retardant coat to keep it safe.

If a fence is preventing a safe driveway or roadway it will not pass inspection. What this means is it is blocking the view of traffic in an unsafe manner. This does not mean you will have to take all of it down, just the amount that the inspector deems necessary.

Depending on your location you might also need a building permit for that old fence. This shouldn’t be a problem though, just ask your inspector for one. Your inspector will also be able to clarify what you will need that permit for.

As a general rule of thumb, if a fence has been standing for four years and properly recorded, then it has a good chance of being grandfathered into new building codes. If it has not been properly recorded then your chance of getting it grandfathered goes down significantly.

Your Building Code Department will be able to tell you how to properly record your fence construction.

Maintaining Grandfathered Status

Being grandfathered makes life incredibly easy. It can be lost though if you don’t take care to maintain it.

Repair the fence whenever you need to. If the fence is damaged to the point where you need to replace a significant portion of it then your fence will no longer be grandfathered and will need to comply with new building codes.

This isn’t a problem if you keep the fence in good order though. This would also include replacing posts and whatever coating has gone over them.

The only caveat to this is if the fence is burned down. Then you may not be required to fulfill all the new codes. This is up to the Building Code Department, however.

In my opinion though, if the fence is burned down any way you might as well rebuild it up to code to prevent any future changes.

Sometimes a fence will fall out of its grandfathered status simply because a new code forgot to mention that it was okay to stay grandfathered. If this happens you will need to appeal to the Building Code Department and/or the Zoning Board.

If you appeal using the term “hassle” your appeal will likely be granted.

Understanding Grandfathering

Let’s talk about a few important side notes.

First is that the term “grandfathering” isn’t technically a legal term. When you are looking for information in documents you will need to look for the term “non-conforming” otherwise you will never find anything.

The same stands true for your inspectors. They may use the term “non-conforming” while speaking with you or their colleges. This just means grandfathered.

Grandfathering has become a sort of legal slang. It essentially means “something old being okay under new laws.” Because of that, there is a lot of confusion when looking for how something can be grandfathered.

There are many things being grandfathered in could mean. A common one deals with property lines.

If you are interested in learning other applications for grandfathering or were looking for that in the first place we have covered that in another article. Here is the link for that page. The link deals with how fences can be grandfathered into a property line.

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