The North Carolina Court of Appeals recently published an opinion in Bryan v. Kittinger that has the potential to impact how community associations, such as HOAs, can amend restrictive covenants. The Court also ruled on the types of animals that can be considered “household pets.”

Background of the Case

Plaintiffs and Defendants are next-door neighbors in the Sleepy Hollow subdivision. Defendants kept four hens in a coop in their backyard. Plaintiffs filed a lawsuit arguing that Defendants violated Sleepy Hollow’s restrictive covenant that provided as follows:

“No animals, livestock or poultry of any kind shall be raised, bred or kept on the building site, except that dogs, cats or other household pets may be kept, provided that they are not bred or maintained for any commercial purpose.”

Plaintiffs argued that Defendants were not allowed to keep the hens, because the covenant expressly prohibited “poultry of any kind” in the neighborhood. The trial court granted summary judgment in favor of Plaintiffs and held that Defendants’ violated the covenant and enjoined them from keeping the hens on their property.

Amendment of Restrictive Covenant

Shortly after the trial court’s ruling, the members of Sleepy Hollow adopted an amendment to the restrictive covenants that allowed each property to keep up to five hens for non-commercial use. The amendment was adopted by written agreement. In accordance with their governing documents, more than 67 percent of the owners in the community consented in writing in favor of the amendment. The trial court held that the 2020 amendment was not valid, because it was not adopted properly. 

N.C. Gen. Stat. § 41-58, which is not part of North Carolina’s Planned Community Act, requires both spouses to consent to an amendment by written agreement if they own the property as tenants by entirety. The Court held one spouse’s written consent to a restrictive covenant was not valid without the other’s spouse’s signature. This requirement does not apply to joint property owners who are not married to one another.  The Court clarified that the law requiring both spouses to consent only applies if the amendment is adopted by written agreement, but does not apply if the amendment is agreed to by a vote at a members’ meeting. 

Court of Appeals Holding

The Court of Appeals affirmed the trial court’s decision that the 2020 Amendment was not valid.  However, the Court of Appeals reversed the trial court’s order granting summary judgment to Plaintiffs and held that there was a genuine issue of material fact as to whether the hens were considered “household pets” permitted by the covenant.

Potential Impacts

This case could have significant impacts for community association law and, ultimately, for homeowners.

• First, prior amendments to restrictive covenants that were approved by written consent could be potentially challenged if both spouses did not consent in writing. 
• Furthermore, this decision could also impact the interpretation and definition of “household pets” that are permitted in an HOA’s governing documents.

Key Takeaway:  If you are an HOA and are seeking to make amendments to restrictive covenants make sure both spouses (if tenants by the entirety) sign.