A technical question

[Hen Mistress]

Our neighborhood CC&Rs prohibit chickens. We received our copy of the restrictions only at closing as the neighborhood development was so far behind schedule. a try at variances was denied as was a request the section regarding animals be removed and replaced with city code, which does allow chickens.

I was looking the restrictions over recently. They are notarized about a year before we purchased and before there was any selling at all. However, they were not filed with the county of Dallas until nearly 6 months after we closed and moved in. Anyone familiar with if this restriction actually applies to us? Could we have a way around the restriction?

Thanks!

 

[FuzzyButtsFarm]

I would get a hold of a real estate atty. To find this out at closing is a crock.

 

[Sonoran Silkies]

Agreed, they should have been provided well-prior to closing. Had you previously requested to see them? Your most likely legal loophole is that they were not filed before you moved in--not until 6 months after. In some states CC&Rs are not valid until they are recorded (filed with the county); that would mean that they were not legally binding until then, regardless of the fact that they had been written well beforehand. THere may be other documents (articles of incorporation or plat, for example) that were already filed that indicate that there are/will be CC&Rs. As was suggested, a real estate attorney.

 

[jaj121159]

Any restrictions should be disclosed in the disclosure statements prior to closing and covenants and/or deed restrictions should also appear in a title search. In Nebraska you would not be subject to any restrictions if they weren't filed prior to closing unless they were placed as deed restrictions at the time of closing. I would, like others have said go get an attorney.

 

[Hen Mistress]

Yes, we requested all applicable materials. Despite being an established, multi-state builder, this development was a Keystone Cops endeavor. No plat for the salesperson (who worked out of his car trunk), no dimensions on house plans, no following redline changes, no consistency in quality. Four years after moving in, I still had warranty work done because I had construction progress photos to prove it was not homeowner maintenance issues but was construction ineptitude.

If I can get around their no chicken rule because, again their ineptitude, I will.

Now, how to find a hen-friendly real estate lawyer?

 

[jaj121159]

I would think the big issue would be if you signed away your rights at closing.

 

[Hen Mistress]

Will review our documents on that. I suppose if you apply the "common man/person" standard, one couldn't be expected to read, review, fully understand a 50 plus page document that had just been presented in addition to the usual closing docs. They may have us on this but then again, how do we know what they gave us in October was what they filed the following April.

The CC&Rs are also full of errors and inconsistencies such as the no clothesline/clothesline must be not visible from the middle of the street rules. They are inconsistently enforced and often ignored like the "no holiday lights until 2 weeks before holiday" rule.

Thanks for the great feedback.

 

[Sonoran Silkies]

Courts have typically held that rues must be enforced fairly and consistently or that that particular rule will cease to be enforceable at all. However, in most cases lack of enforcing one rule consistently will not invalidate other rules. I suppose if there were a massive inconsistency in enforcing many or all rules that the entire set of restrictions could be tossed, but that would be unusual.

You do not need a hen-friendly attorney; you need one who is very knowledgable in real estate law as applies in your case, and one who is quite familiar with HOA law is also preferable. Whether or not he/she likes chickens is immaterial; what you want is legal expertise in winning real estate and HOA cases. Ideally, you want to avoid the cost of a suit, but best to get the best legal advise you can to begin with. That is not only the best way to achieve your goals, but also the least expensive way. A little money spent in letters to the HOA or towards an out of court settlement that achieves your end is far less expensive than a case--even if you win. Do note that you should request attorney and court costs--even if the fight does not make it to court; it is a bargaining chip.

 

[jerryb]

I am the president of our HOA, don't worry its a small neighborhood and chickens are welcome since most neighbors buy eggs from my daughter, as president we had a situation where one neighbor was out of bounds on our CC&R s. So, I called my attorney who does a fair amount of RE work and he reviewed our docs and told me that in Michigan a homeowner's or HOA's only recourse to CC&R violations is to file suit in circuit court and win a judgement.

given my experience with that you might ask the attorney you contact how the HOA can enforce the CC&Rs. if they have the same requirement, file suit, win get a judge to order you to stop then that might be more than they care to deal with.

In my neighborhood the only restriction that applies to chickens is the one which states you cannot have a permanent structure designed exclusively to hold animals. it goes on the specify that permanent structures must have a foundation of stone, brick or concrete. so no foundation, not permanent for the purposes of the rule, so my coop is all wood and can be move with my trailer!

 

[Hen Mistress]

Jerry, this is where a lawyer will help out. You see, The HOA management companies in Texas have us over a barrel. This is the state where a HOA foreclosed on an active service soldier in Iraq over late payment of dues of $800. They then sold his $300,000 house for about $3000.