The North Carolina Supreme Court recently rendered its decision in a case concerning a dispute between homeowners (the Schroeders) and their homeowners association (HOA) regarding a restrictive covenant that prohibits keeping animals other than three or fewer horses, unless they are household pets not used for commercial purposes. The Schroeders kept a flock of up to sixty chickens, arguing they were household pets. The HOA disagreed and fined the Schroeders $100.00 per day. The Schroeders, in turn, said, “Go cluck yourself,” and sued.
At trial, the Schroeders testified that every chicken had a name, knew its name, and would come when called. They introduced video exhibits of Ms. Schroeder playing with the chickens. Ms. Schroeder testified that she spent “one and a half to two hours at least a day” (calculating to about two minutes per day, per chicken) with the flock, that she formed personal relationships with each chicken, and that she paid close attention to their veterinary needs. The Schroeders also testified that they never ate any of their chickens and did not sell their eggs.
However, on cross-examination, Mr. Schroeder admitted he did not know the names of many of the chickens. The HOA also introduced evidence contradicting the Schroeders’ testimony that they never sold eggs; in a Facebook post, Ms. Schroeder wrote, “I sell farm-fresh eggs.”
The trial court denied summary judgment and directed verdict motions for both sides. The jury found that the chickens were not household pets. The Court of Appeals reversed, stating there was “not even a scintilla of evidence” to support the jury’s verdict. The Supreme Court disagreed with the Court of Appeals, finding that there was “more than a scintilla of evidence” to support the jury’s verdict — including the large number of chickens, limited individual attention, Mr. Schroeder’s lack of familiarity with the chickens, and the conflicting testimony.
Why should anyone care about a couple in North Carolina having sixty chickens as pets? You shouldn’t — that’s weird, and 99.9% of people wouldn’t do such a thing. However, as with most appellate cases, although it may appear that the court is deciding a very narrow issue (i.e., can you have sixty chickens as pets? Is a hot dog a sandwich? Is someone riding around a golf course from shot to shot really a golfer?) they are actually deciding a much bigger question or legal principle.
In this case, the North Carolina Supreme Court was interpreting a common law principle regarding restrictive covenants. The principle reads: “Covenants are strictly construed in favor of the free use of land whenever strict construction does not contradict the plain and obvious purpose of the contracting parties.” Careful consideration when drafting covenants is paramount to fulfilling their original purpose and intent. A single word — used or even inadvertently omitted — can create such ambiguity that it renders a covenant utterly useless.
If you are a developer drafting Condominium/HOA governing documents, a managing board looking to amend your current docs, or a buyer needing governing documents reviewed, contact me at sean@amcondolaw.com. Don’t cluck around and find out on your own.
For a copy of the Decision [click here].
Written by
Sean Tiernan
sean@amcondolaw.com
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