Deed Restrictions Contradictory and Not Being Enforced

by Vernon

Visitor Question: Our Deed restrictions were written by the developer for lots consisting on no less than 5 acres in a rural area (zoned agriculture).

After all lots were sold, the deed states control is to be turned over to an HOA. An HOA was never formed.

We understand the Deed still is effective and supersedes Zoning. However a vast majority of the residents are breaking one or more of the deed restrictions directly, and have done so for past 5+ years.

The question is interpretation of the animal restrictions. The deed states:

"Domestic pets/animals are allowed within (estate name) with the understanding that each lot owner shall have the responsibility to abide by all laws and ordinances relating to pets/animals within XXXX County, Kentucky. Domestic pets shall be defined as dogs, household cats, horses, a youth cow/calf project, fish and birds (non-prey). However, there shall be no pigs, chickens or other foul, nor any other animal shall be kept on the property which would cause unreasonable noise and/or odor to emanate from the property. All other pets/animals are strictly prohibited. No vicious pets/animals or breeds that have known tendencies toward same shall be allowed in the subdivision. No wild animals as defined by the XXX County, KY Ordinance XXX shall be allowed in the subdivision."

One owner has a few goats for the purpose of youth livestock projects (4-H), another owner has 5 sheep. One neighbor, between the two with sheep and goats, has repeatedly threatened to sue both neighbors over the sheep and goats as they are not allowed per the deed.

The deed restriction is very gray in that one sentence it states "...nor any other animal shall be kept on the property which would cause unreasonable noise and/or odor to emanate from the property.", another states "All other pets/animals are strictly prohibited."

And finally to add to confusion it states "that each lot owner shall have the responsibility to abide by all laws and ordinances relating to pets/animals within XXXX County, Kentucky."

The zoning specific to these "Cluster developments" states the purpose is to maintain rural and agricultural nature of the county with the specific mention of land use for "livestock that graze/consume forages".

How would you believe a judge to interpret the deed restriction?

Incidentally the threatening neighbor has 2 gazebos, 2 barns and their residence. The deed restrictions state that no more than 3 structures (specifically naming gazebos, barns, etc.) including the residence are allowed. They argue they are not in violation because one day they plan to connect the 2 barns with a breeze way and the one gazebo is connected to their house by a wooden deck (30 or more feet between house and gazebo).

Editors Respond: We're sorry to say that this question was asked months ago, and we lost track of it in the course of discussing an answer among the editors. But we think our discussion might be useful to you or others.

As usual, we must caution that we are not lawyers, so use our commentary as background information and do not rely on it if you need legal advice.

Those things being said, we want to make sure that the major point comes across. Both deed restrictions and zoning and other county ordinances must be obeyed. You said, "We understand the Deed still is effective and supersedes Zoning," but we would rewrite that just slightly to say "The Deed still is effective but we also must obey zoning."

In practice, this means that whichever one is most restrictive governs. When the deed restrictions contradict one another, that is when a judge must get involved if the stakes are high enough that someone wants to pay for clarification.

Since you have no HOA, the "someone" who would have to pay for clarification would be you or your neighbors or all of you together.

As for the sheep and goats question, the writing seems pretty clear when it says, "All other pets/animals are strictly prohibited." If we owned the sheep or the goats, we would get rid of them. Granted, sheep may not be as potentially damaging to the land or to others' properties if they were to escape the fence as the cow and calf 4-H project would be. But we have to take the restrictions at face value.

You are correct in that it is a little troubling that people can't keep a few farm animals on five-acre plots in land that is zoned agricultural, where the zoning clearly anticipates that animals such as sheep will be kept. But the law makes no guarantee that deed restrictions will be reasonable.

As for the neighbor who has five structures when only three are allowed, this neighbor's excuses aren't convincing to us. You didn't tell us the definition of a structure, if any, in your deed restrictions. Probably there is no definition, but we would argue that all five items are structures right now. Whether a deck connects two of them is not relevant in our opinion, and future plans surely are not relevant and would not be upheld in all likelihood by a judge or hearing officer of any type.

You didn't really ask what comes next, and we aren't sure which outcome you want. If you want to change the deed restrictions, though, there should be a mechanism in Kentucky law to allow you to do that. You would need to see an attorney to find out what is required. In some states you have to go back to the developer, or to the developer's heirs if deceased. Sometimes you have to have unanimous consent of all current property owners, and it varies all the way down to saying that if you have consent of a majority of current property owners, you can change the restrictions. If you want clarity in the future, that is what you should do.

If you are all more or less getting along, though, you can let the confusing situation ride until some one of you gets upset enough to sue.

We hope this is helpful background discussion for you.
Deed Restriction Contradictions and Lack of Enforcement

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