The Kittingers moved into the Sleepy Hollow Subdivision in 2016, a planned community, and kept four hens in a coop located in their backyard. At the time, Sleepy Hollow had a restrictive covenant in place which specifically stated:
No animals, livestock or poultry of any kind shall be raised, bred or kept on the building site, except that dogs, cats or other household pets may be kept, provided that they are not bred or maintained for any commercial purpose.
Their neighbors, the Bryans, commenced legal action against the Kittingers and alleged the hens’ presence in their yard was in violation of Sleepy Hollow’s restrictive covenant. The trial court ruled in favor of the Bryans in late 2019, agreeing that the hens violated the restrictive covenant as a matter of law and therefore the Kittingers could no longer have the hens at their home. In making this determination, the trial court relied on the simple language of the covenant: “no… poultry of any kind” is allowed.
In early 2020, Sleepy Hollow recorded an amendment to their covenants, allowing for up to five (5) hens for non-commercial use. Based on this amendment, the Kittingers sought relief from the court’s prior ruling which restricted their ability to have hens.
Trial Court Decision
The trial court denied the Kittingers’ request for relief. The court determined the newly recorded covenant allowing hens was not properly executed and therefore not valid. The amendment required an “affirmative vote” or “written agreement” of sixty-seven percent (67%) of lot owners. Sleepy Hollow has sixteen (16) lots and would therefore require concurrence of eleven (11) lots to amend. The written agreement was signed by eleven (11) lots but was only signed by eleven (11) total individuals, meaning co-owners of certain lots did not sign. The Kittingers appealed the trial court’s initial ruling on the hens as well as the denial of their motion for relief based on the new amendment.
Appellate Court Decision
The Court of Appeals considered an aspect not addressed by the trial court: Do hens fall into the category of “other household pet” as defined in the restricted covenant? The Court cites to a prior case stating that restrictive covenants are to be interpreted to give the effect of the original intent of the parties but if there is ambiguity in the language, the covenant is to be “strictly construed in favor of the free use of land[.]” Armstrong v. Ledges Homeowners Ass’n, 360 N.C. 547, 555, 633 S.E.2d 78, 85 (2006) (emphasis in original).
The ambiguity created by the covenant is that it expressly prohibits all animals of any kind (which would include cats, dogs, etc.), but then allows animals so long as they are household pets, which could include poultry or hens. Based on this ambiguity and the free use of land interpretation, the Court remanded the case back to the trial court to determine if the hens would be considered household pets as defined in the restrictive covenant.
The Court of Appeals affirmed the prior trial court ruling relating to the 2020 amendment and agreed that the amendment was not properly executed. Defendants argued that not all co-owners needed to sign the agreement, as the Planned Community Act does not require all owners to vote at meetings of the association. The Court found that since the amendment was a “written agreement,” and not based off a vote held at a meeting, this section of the Planned Community Act did not apply.
- Clear and concise documents are essential. Documents with contradictory clauses such as “no animals are allowed” and then allowing animals in the very next sentence may lead to outcomes not favorable to the community.
- Know how to properly execute changes to your documents.
Bryan v. Kittinger, No. COA21-98 (N.C. Ct. App. Apr. 5, 2022)