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Subject: Would suing personally work in Fl?
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BenA2
(Texas)

Posts:531


05/20/2018 12:32 PM  
Posted By AugustinD on 05/20/2018 8:22 AM
Posted By BenA2 on 05/20/2018 8:04 AM
The issue here is that if the chickens are NOT pets, there is no violation of the covenants. The fact that the owners initially claimed they were pets becomes almost irrelevant in court. The judge may consider it but what matters is whether or not he believes they ARE, in fact, pets, and I think it is very unlikely that a judge would rule that chickens kept in a coop are pets.


I get how you are parsing the covenant, and I think this is an interesting take. It sounds like you are saying: If the chickens are not pets, and are not for commercial use, then they are just animals co-habitating with the owner on the property. You could be right, but just my opininon: On this point, I think a court would say co-habitating without a commercial purpose means the chickens are pets.

I suppose the chicken owners could make your argument (meaning there are no covenant restrictions whatsoever on the chickens) as well as my argument (restricting the owners to two pets, in this case, chicken pets).

Here are two recent court opinions where the argument that chickens are pets appears to have been quite persuasive. Both courts ruled in favor of the chicken owners.

https://law.justia.com/cases/new-mexico/court-of-appeals/2016/33-850.html

https://law.justia.com/cases/new-york/appellate-division-fourth-department/2014/164-ca-13-01123.html

I do not think it matters whether the chickens are kept in coops or not.

I could be wrong. Importantly, the lower courts in both these cases ruled in favor of the HOAs. This means this could be one expensive battle. I think for the first case above, news reports say the HOA spent on the order of $100,000.





I doubt many judges would rule that an animal is a pet simply because it lives on your property and serves no other purpose. In the cases I've read, they weigh several factors in determining if an animal is a pet. How and where they are kept is one.

The most common use of chickens in residential areas is for the eggs. Many municipalities are allowing chickens for this purpose. They are not pets and it is not commercial use.
GenoS
(Florida)

Posts:2349


05/20/2018 12:46 PM  
If an association does not maintain "statutory reserves" in Florida, the reserves can be used on anything the board desires. This is especially relevant for HOAs established before FS 720 was enacted by the legislature in 2000.

FS 720.303(6)(d)
"An association is deemed to have provided for reserve accounts if reserve accounts have been initially established by the developer or if the membership of the association affirmatively elects to provide for reserves."
BenA2
(Texas)

Posts:531


05/20/2018 12:50 PM  
Posted By AugustinD on 05/20/2018 8:22 AM

I get how you are parsing the covenant, and I think this is an interesting take. It sounds like you are saying: If the chickens are not pets, and are not for commercial use, then they are just animals co-habitating with the owner on the property. You could be right, but just my opininon: On this point, I think a court would say co-habitating without a commercial purpose means the chickens are pets.



I don't think a judge would rule that an animal is a pet simply because it lives on the property and serves no commercial purpose. In the cases I've read the courts usually consider how and where animals are kept. Many people keep farm animals for their usual purposes and they are not commercial. Goats are kept to keep grass down, cows for milk, chickens for eggs. None of these would be considered pets.

The most common use of chickens in residential areas is for eggs. Many municipalities allow a limited number of chickens for this purpose. The are not pets and are not used for commercial purposes.
NoahA
(Florida)

Posts:205


05/20/2018 1:07 PM  
My only take on it is looking at the words "household pets" a chicken would not be INSIDE a house.....so that means nobody is to have any animals that would fall outside of the scope of that.

The 1978 rules were really clear "no farm animals , no poultry".

To me that is common since, but I really hate those bozos for butchering that stipulation in 1991.
BenA2
(Texas)

Posts:531


05/20/2018 1:21 PM  
Posted By NoahA on 05/20/2018 8:34 AM
in 1978 the rules and founders had it say

1978 RUles
Except for no more than 2 dogs or 2 cats, and other household pets
no animals, livestock or poultry of any kind shall be raised, bred
or kept on any lot.

In a newsletter in 1986 it says
We had to decline a resident from building a backyard aviary.
This to me implies not only chickens are not allowed, BIRD CAGES are not allows in backyards.

1991 rules say

8.01 PETS
Mo pets shall be maintained or kept on any portion of -the
property, including within any dwelling unit, other-than cocanon
household pete such as cats, doge, goldfish, tropical fish and
the like, and such birds as canaries and parakeets. Ho animals;
including any of the above, may be kept, brad, w maintained for
any comnercial use upon the property or within ar building" or
structure. In any event, no more than two (2) pets shall be main-
tained within the boundaries of any lot.

2004 Rules

PETS
No pets shall be maintained or kept on kept on any portion of the property,
including within any dwelling unit, other than common household pets such as
cats, dogs, goldfish, tropical fish and the like, and such birds as canaries and
parakeets. No animals, including any of the above, may be kept, bred or
maintained for any commercial use upon the property or within a building or
structure. In any event, no more than two (2) pets shall be maintained within the
boundaries of any lot.

Unless someone says "common household pets are CHICKENS".........i dont see any chickens any anyone's house. All 4 houses have htem outside in coops with roots that were never paid for by the county for a permit.

But if I'm right about if a rule is too vague, they would look at Previously written rules.....it should be clear that this area never was and never has been for chickens.

Even when one couple moved in they said they did not mind the rules except for the chickens of which they asked the present and he siad "Even thought its agasint the rules Ill talk tot he neighbor and see if he minds, the neighbor said no.....so the president said "why not".

That verbal allowance is not legal ......he did not run it by the board, or the community.

Also without a doubt it says NO more than 2 pets...well that same couple has 2 indoor cats and 3 outdoor chickens.....that is breaking the rule period in that perspective.



There is nothing vague about the rules for animals. It is very clear that you can't have chickens for pets or commercial purposes. It is silent on keeping chickens for any other purpose, so keeping them for other purposes (such as a food source) is unrestricted.

The only interpretation that is going to matter in court is the judge's. The fact that the board or homeowners interpret it one way or the other is irrelevant, other than the judge will probably listen to your argument.
BenA2
(Texas)

Posts:531


05/20/2018 1:32 PM  
Posted By NoahA on 05/20/2018 1:07 PM
My only take on it is looking at the words "household pets" a chicken would not be INSIDE a house.....so that means nobody is to have any animals that would fall outside of the scope of that.

The 1978 rules were really clear "no farm animals , no poultry".

To me that is common since, but I really hate those bozos for butchering that stipulation in 1991.



The 1978 rules may have been better but apparently the owners in 1991 wanted something different.

Many municipalities that outlawed chickens in the past are rethinking and passing ordinances to allow them for egg production because attitudes have changed. Most covenants allow amendments for the same reason.

It is very likely that people who wanted chickens read the covenants and understand them, and that is why they moved there.
AugustinD


Posts:1088


06/26/2018 7:18 AM  
Posted By AugustinD on 05/20/2018 8:22 AM
Here are two recent court opinions where the argument that chickens are pets appears to have been quite persuasive. Both courts ruled in favor of the chicken owners.

https://law.justia.com/cases/new-mexico/court-of-appeals/2016/33-850.html

https://law.justia.com/cases/new-york/appellate-division-fourth-department/2014/164-ca-13-01123.html



I am mistaken above about the New York appeals decision. The New York decision was in favor of the HOA and against the chicken owners. (Two of the appeals court's judges argued that the covenant was ambiguous and so the court should err in favor of free enjoyment of land and thus the chicken owners.)

Key paragraph in the ruling against the chicken owners:

"It is well settled that, [s]o long as the [B]oard [of directors of a homeowners' association] acts for the purposes of the [homeowners' association], within the scope of its authority and in good faith, courts will not substitute their judgment for [that of] the [B]oard[ ]' " (Spaulding Lake Club, Inc. v Haibo Jiang, 78 AD3d 1668, 1669, quoting Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538). The Declaration provides that plaintiff's Board "shall have the absolute power to prohibit a pet from being kept on the Properties, including inside residences constructed thereon." Here, plaintiff established that its Board was acting for the purposes of the homeowners' association and within the scope of its authority when it directed defendants to remove the chickens from the property. In addition, there is no evidence [*2]that defendants were " deliberately single[d] out... for harmful treatment' " inasmuch as no other residents of the subdivision had chickens or were in violation of the applicable restrictive covenant (Spaulding Lake Club, Inc., 78 AD3d at 1669), and defendants otherwise " failed to present evidence of bad faith . . . or other misconduct' "

This issue seems to be coming up a lot. I want to get the record right.
ArtL1
(Florida)

Posts:114


06/27/2018 4:34 AM  
Something to ask an attorney about before wasting $ going to court:

Your HOA appears to be fairly old. How long have any of the homes there maintained chickens? If >5 years, that's exhausted the statute of limitations on civil contract enforcement. That means the HOA can't enforce that restriction without jumping through some hoops and grandfathering-in those that already have them. I don't know if that also stops individual members from suing to enforce the restriction, but I'd guess it does.
NoahA
(Florida)

Posts:205


06/27/2018 5:15 AM  
Well the board now is talking about "Grandfathering" in the pcopel that have chickens with the clause of "when they die" no more new chickens.

I wish someone would sue the old president that allowed no enforcement for 8 years straight, he single handely runined what was a good community.

and no I did not live here during all 8 years, just the last 2 and I was giving him hell about doing nothing, and he was always saying "if we start to enforce rules people will get mad"
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