Rights of Property Owners Next to Deeded Subdivision

by Barb
(Greencastle, Pa. USA)

Visitor Question: We live next to a deeded subdivision. The property that adjoins ours in the back has numerous poultry. Their deed says no poultry. Since we are not a part of the subdivision but are directly affected by the deed violation, do we have any rights to seek enforcement of the deed restrictions? We have lived on our property much longer than the subdivision has been in existence.

Editors Reply: We apologize for overlooking your question when it arrived, Barb. We are cleaning up today, and we decided to answer, since your question may apply to others, even if you have resolved the situation.

The quick answer is no, property owners adjacent to a deed restricted property have no rights. Typically you would have to handle the situation through persuasion, or perhaps through other municipal or county regulations on poultry possession everywhere.

If there is a subdivision association that acts as a homeowners association, meaning it maintains some common ground and such, it is possible that they have some rights to try to enforce rules that may also be found in the deed.

If there is such an association, be sure to approach their leadership right away. Presumably they will have an interest in enforcing this and other deed restrictions, which often are found in a document called the CC&R's. Some associations have the right to fine people for violations, and that might do the trick.

Also be sure to check with the municipality or county in which the poultry are located. If there is a zoning ordinance in effect, that ordinance may govern whether poultry are allowed, and if so, how many. While there is a nationwide trend toward allowing backyard chickens, not every location is following that trend.

Here is the key point: if there is a zoning prohibition against keeping poultry, you can insist that the government enforce that prohibition.

If the prohibition is found only in the deed restriction, you would have to sue to enforce the restriction, and a court may say that you do not have what is called "legal standing" to sue.

The situation of those actually living in the subdivision is only slightly better. They would be closer to being found to have legal standing, but they also would have to sue in a court to get enforcement--unless there is a homeowners association with power to enforce the deed restrictions.

The average homeowner would need to weigh the expense of filing and pursuing a lawsuit, versus the nuisance of having unwanted animals adjacent to his or her back yard.

This is why we generally favor publicly enforceable regulations, such as those imposed in the zoning ordinance or other land development regulation, as opposed to deed restrictions. Clogging up courts with private lawsuits over matters of nuisance, no matter how irritating the nuisance may be, does not seem like the way to go as a society.

The fact that you owned your property before the subdivision was built probably will not give you any legal advantage. Subjectively, it might influence a judge slightly, but probably it will have no legal bearing.

In sum, you or others with similar situation should:

1. Talk with the property owner. Many people overlook this obvious step, either out of fear of conflict or memory of actual conflict with the property owner. But if there is no prior bad blood, this often has a better result than people predict.

2. Determine whether the property in question is located in a municipality, and if so, whether that village, town, or city has a zoning ordinance. If the property is zoned, ask whether the ordinance addresses poultry cultivation.

3. Find out if there is a homeowners association--not a social club, but a legal entity with some clout. If there is such a thing, ask them if they have rights to fine people or otherwise force compliance with the deed restrictions.

4. If there is no county or city zoning that will help, and there is no active homeowners association with powers to enforce through liens and fines, then you would need to consult an attorney if you want to pursue this further. Possibly others in the subdivision would join you in exploring a lawsuit, as probably others are annoyed by the poultry as well.

Also be aware that sometimes a letter from an attorney warning of a possible lawsuit will produce the desired result, without going to the expense of filing an actual lawsuit.

We hope these comments are helpful to you and to others facing similar situations.

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