Are hens allowed by this covenant?

[ljwsav]

8. No animals, birds or fowl, including but not limited to hogs, cattle,
cows, goats, sheep, rabbits, hares, dogs, cats, pigeons, pheasants,
game birds, game fowl, or poultry (except as hereinafter permitted)
shall be kept or maintained on any part of said property.
9. Dogs, cats and pet birds confined in cages, may be kept on any lot in
reasonable numbers as pets for the pleasure and use of the occupants
of said lot, but not for any commercial use or purpose. In no event
shall any roosters, guinea hens or other noisy fowl be kept for any​

purpose on any lot.


Roosters are a NO but how about hens?

 

[TallChickMagnet]

Even though they are not strong flyers, chickens/hens are birds/fowl.

Will you be keeping them in a cage?

 

[20736]

If you keep hens as pets, I would say yes.

 

[ljwsav]

I thought chickens would fall into poultry. Would hens be considered noisy fowl?

 

[TallChickMagnet]

I thought chickens would fall into poultry. Would hens be considered noisy fowl?

Do your chickens make noise? Some of mine do, some don't. Only you can answer that. It may also have something to do with breed...and don't forget the happy egg laying song.

 

[Sonoran Silkies]

The "except as hereinafter permitted" is the loophole. I guess that item 9 is the "hereinafter," so you would have to abide by it.

 

[ljwsav]

Here is our HOS's interpretation of the Convenant. Any legal minds concur?

The HOA's attorney recently rendered an opinion on the intent of the HOA's covenants Section II.8 & 9 and he opined that chickens (in any quantity) were not allowed in the Subdivision.

With regard to Paragraph 9 allowing chickens by omission of specific exclusion, the attorney previously stated that in his opinion, and most likely the opinion of any judge which such a case may arise, the intent of the sentence is to exclude noisy fowl from being identified as “pet birds in cages”. Since chickens are not considered “noisy fowl” they need not be named in the sentence, hence the interpretation chickens are allowable by omission would easily be defeated in court.

We sought the attorney’s opinion in October of this year when two neighbors complained about chickens on an adjacent property. When polite requests from HOA were unsuccessful in having the chickens removed, we engaged the attorney to address the situation and the chickens were subsequently removed from the property.

 

[Sonoran Silkies]

I am not an attorney, but the logic doesn't work. You could have a quiet chicken in a cage by that logic. And how large is a cage? Where does a cage become too large to be a considered a cage and become a pen?

Now the intent probably WAS to exclude chickens, but by adding in the bit that excludes SOME of what was already excluded, but not all, they left the door ajar for anything that doesn't fall into that second exclusion.

As for saying that all judges would agree, well look at our legal system...it is built with the supposition that different judges will view things differently. A ruling by a judge who puts a lot of weight into the intent versus one who ignores mostly intent and puts more emphasis on the exact wording and phrasing could give you different outcomes. Add on whatever state laws there are governing HOAs and also case law and who knows what could be ruled.

One thing that hiring an attorney will do is make a person think about the risk of being sued, and the costs it could entail, and decide that the risk is too high. (Loser often has to pay all costs for both sides). Works when an association wants to collect unpaid assessments and also for rule violations. Even when it is questionable whether the rules were actually violated.

 

[Egghead_Jr]

"Noisy fowl" is a subjective statement and therefore must be determined in case specific conditions. By listing specific birds that are not permitted and stating there is an exception allowed for poultry in the covenant then his argument that mere omission would be dismissed is defunct. The primary concern of the covenant is noise, if a few hens are kept in good order and proper arrangements are made to damper noise like walls and hedges. There would have to be a justifiable noise complaint to deem a few pet hens as "noisy fowl".

 

[Conchis]

Only a judge can truly answer the question posed, but I suspect that chickens are actually still in the running and this is why. At first there is an exclusion for poultry (clearly a chicken), but then makes allowances for pets in cages provided that they aren't ROOSTERS. Now the fact that they specifically exclude roosters, but not poultry in general makes it seem likely that roosters ARE noisy, chickens, not so much. The real problem in these darned things are that the HOA runs up healthy fines (usually on a daily basis) for violations and taking them to courts costs money, potentially loosing huge amounts in fines is a risk and so no one can really take these things on. The fact that the HOA attorney gives an opinion (he's paid by the HOA what opinion do you think he's going to give?)....he probably wrote the provision and the HOA is saying...hey wait a minute...you didn't included chickens? are you nuts? we're going to sue YOU!