Backyard Chickens: Everything Your HOA Needs to Know About Backyard Chicken Coops
Chickens are becoming increasingly trendy animals for people to own. At least part of the driving force behind people keeping chickens is the fresh supply of eggs. With increasing awareness around farming practices and consciousness about health, many people are keeping chickens in their backyards. For those who are part of a homeowners association in a suburban setting, though, there could be a concern that the association’s restrictive covenants prohibit chickens from being kept. This is because many restrictive covenants allow owners to have pets, but prohibit owners from keeping exotic animals, livestock, or poultry on their lot. But this raises the question: are backyard chickens pets, and how should a homeowners association address chickens?
Are Chickens Pets?
As any reasonable community association attorney will tell you, whether an owner may keep chickens will depend on the language of the governing documents. An association’s declaration, deed restrictions, or covenants, conditions, and restrictions will likely address animals in the subdivision. The level of specificity about those animals may vary from governing document to governing document. Nonetheless, governing documents will typically allow owners to keep pets on their lot and may prohibit classifications of other animals, such as livestock, exotic animals, and poultry. In these situations, whether chickens are permitted may depend on whether chickens are considered pets.
While there has not yet been a case in Michigan directly addressing whether chickens are pets, courts in other states have addressed this question. In Schroeder v The Oak Grove Farm Homeowners Ass’n, 293 N.C. App. 428; 901 SE2d 17 (2024), the North Carolina Court of Appeals considered whether chickens were animals or pets under the homeowners association’s restrictive covenants. The plaintiffs kept a flock of ornamental and fancy breeds of chickens, which numbered as many as 60 chickens at one point, on their 17-acre lot. The homeowners association filed a lawsuit against the plaintiffs, claiming that the chickens violated the restrictive covenants, which provided in part:
A maximum of three horses may be kept and stabled on any lot or combination of adjoining lots under common ownership…. No other animals, livestock, or poultry of any kind shall be raised, bred, or kept on any lot, except that dogs, cats, or other household pets, may be kept provided that they (including horses) are not kept, bred, or maintained for any commercial purpose. No dog kennels of any type shall be kept or maintained on the property.
At the end of a jury trial, the jury determined that the plaintiffs’ chickens were not household pets and upheld the homeowners association’s $31,500 in fines levied against the plaintiffs before the lawsuit.
After reviewing the relevant provision and analyzing the language alongside an applicable local ordinance, the Court of Appeals determined that the restriction provided that “pets, which may include ‘any live, vertebrate creature, wild or domestic, other than human beings, endowed with the power of voluntary motion’ should not be kept on an owner’s property unless it is a horse, dog, cat, or ‘household pet,’ and none of these animals may be kept for commercial purposes. Even if Plaintiffs’ chickens are considered ‘poultry’ under the covenants, they still may be kept on the property so long as they meet the definition of ‘household pets.’ ” Accordingly, the Court of Appeals reviewed the facts and arguments of both parties on whether the chickens were household pets.
The plaintiffs claimed that the chickens were household pets:
Plaintiffs’ evidence included the chickens liked to be held and carried, and Mrs. Schroeder spent an hour and a half to two hours with her chickens each day, took care of their medical needs, and bathed and blow-dried them in the house. Plaintiffs testified every chicken knew its name and would come when called. Plaintiffs testified the chickens were not bred for meat, and they never ate any of them. Mrs. Schroeder admitted that in April of 2019, she wrote in a social media post she sold “farm fresh eggs” and was looking for a place to donate extra eggs; however, she testified she never sold the eggs, but she did give extra eggs to neighbors. After having the chickens removed, Mrs. Schroeder drove over an hour each way once to twice a week to visit the chickens. Neighbors familiar with Plaintiffs and their chickens testified they saw Mrs. Schroeder holding the chickens and spending a lot of time with them.
Board members of the homeowners association testified that they considered the chickens to be poultry, excluding them from being considered household pets.
The Court of Appeals highlighted that the trial court did not define the term “household pet” and whether the chickens in this case could be considered household pets. In considering the issue, the Court of Appeals reviewed a prior case, Steiner v. Windrow Estates Home Owners Ass’n, Inc., 213 N.C. App. 454, 462-463; 713 SE2d 518 (2011), involving whether goats were household pets, which focused the analysis on whether a pet is related to the household, as opposed to whether the pet actually lives inside the house. Under this framework, the Court of Appeals determined that the chickens were household pets because the plaintiffs “had the same connection and relationship with their chickens as other people have with more traditional pets.”
A case out of New Mexico reached a similar conclusion based on the dictionary definition of “pet”:
… “a domesticated animal kept for pleasure rather than utility” and “kept for companionship or pleasure” is a pet. Merriam–Webster’s Collegiate Dictionary 926; Oxford Dictionaries, www.oxforddictionaries.com/us/definition/ american_english/pet (defining “pet” as “[a] domestic or tamed animal kept for companionship or pleasure”). The parties do not spar much over what a “pet” is. The definitions do not state that pets cannot also have utility. For purposes here, hens kept as a source of eggs are poultry, and hens also kept as a source of companionship or pleasure can be a pet.”
Eldorado Cmty Imp Ass’n, Inc v Billings, 374 P3d 737, 739 (2016-NMCA-057).
The New Mexico Court continued:
We therefore disagree that Section 11 disallows hens that can be and are treated as pets. And we disagree that to allow hens as household pets creates or opens up any likely circumstances of ruination as expressed by the association and the district court that warrants an interpretation that allowing the hens as pets could never have been intended at any time and under any circumstance. We are not persuaded that in permitting pet chickens “the sky will fall.” Such a Chicken Little-esque view of possible results and calamity is not convincing. We also disagree with an interpretation that whether hens may be permitted depends on a majority vote of the members of the association or on a vote of some particular number below 50% of voting lot owners. If the association or the lot owners of the subdivision want a different result, the lot owners must effectuate the change through the required covenant amendment election process set out in the covenants. Section 11 of the covenants cannot be enforced under the circumstances in this case to preclude the owners from keeping their hens as recognized household pets.
It should be noted that these cases are from North Carolina and New Mexico, respectively, and therefore are not binding on Michigan courts. Nonetheless, Michigan courts will often consult a dictionary to define a term in the restrictive covenants, declaration, or deed restrictions that is not explicitly defined. See Sylvan Glens Homeowners Ass’n v McFadden, 103 Mich App 118, 122; 302 NW2d 615 (1981) (consulting the dictionary to define “trailer” and “motor home” for purposes of an alleged violation of the governing documents). Accordingly, Michigan courts may likewise consider chickens with a relationship with their owners similar to traditional pets by being kept for companionship or pleasure to be pets, and therefore permitted under the deed restrictions, restrictive covenants, or CC&Rs. In an effort to avoid this situation, a homeowners association may amend its governing documents to prohibit all animals unless otherwise approved by the association, thereby minimizing arguments of whether chickens are pets.
Government Regulation
In addition to the provisions of the governing documents, homeowners associations should also be aware of their local zoning ordinance and whether it affects an owner’s ability to keep chickens on their lot. Some cities or townships may have an ordinance limiting the number of chickens an owner may keep on their property. For example, the City of Saline allows an owner in a residential zoning district to keep up to 12 hens, while Grand Rapids allows an owner to keep a number of chickens depending on the lot’s size. Other zoning ordinance requirements may address requirements for chicken coops or other enclosures where chickens are kept, how chicken feed is stored, and how chicken waste is disposed of.
The Michigan legislature is also considering amendments to the Michigan Zoning Enabling Act and the Michigan Right to Farm Act in HB 4049 and HB 4050, respectively. In HB 4059, the Michigan Zoning Enabling Act would be amended to allow owners of property to keep egg-laying hens as a permitted use of the property so long as the property is at least ¼ acre in size and the lesser of 5 hens for every ¼ acre of property or 25 total hens. Under HB 4050, the Michigan Commission of Agriculture would be required to issue generally accepted agricultural and management practices for the site selection for keeping egg-laying hens in residential areas, ensuring that the property is at least ¼ acre and the number of hens on a property must be the lesser of 25 total hens or 5 hens for every ¼ acre.
Common Restrictions and Best Practices
If owners are allowed to keep chickens, several restrictions are common in HOA governing documents that would apply to the owners and their chickens. These common restrictions include:
- The chickens cannot be kept or bred for commercial purposes, meaning they cannot be kept to sell their eggs or meat.
- The chickens must be properly cared for so they are not obnoxious or offensive due to noise, odor, or unsanitary conditions.
- The chickens must be kept in their coop or enclosure and cannot run loose onto other lots or common areas.
- The owner is responsible for properly caring for the chickens, including removing the chickens’ feces.
- The association could require owners to register their chickens to ensure compliance with any zoning ordinance limiting the number of chickens.
As with any other pet, chickens must comply with the remaining provisions of the governing documents. If there are issues surrounding the chickens, then a homeowners association could take enforcement action against the owner, which may include levying a fine after notice and a hearing or seeking to remove the problem chicken, depending on the enforcement authority in the governing documents.
Conclusion
As the cases from North Carolina and New Mexico illustrate, whether chickens will be permitted to be kept in a subdivision may be determined based on the relationship between the owner and their chickens, and not necessarily prohibited through a general prohibition against livestock or poultry. Until there is guidance from Michigan courts deciding whether chickens are considered pets, homeowners associations may consider amending their governing documents to prohibit all animals unless otherwise approved by the association.
Further, the trend in municipalities appears to be a general allowance of keeping chickens, subject to compliance with the applicable local ordinance. These local chicken ordinances may include a limit on the number of chickens, prohibiting roosters, and size, location, and construction requirements for the chicken coop or enclosure. The Michigan legislature is also considering bills that would allow property owners to maintain up to 25 egg-laying hens on their property that is over ¼ acre.
Finally, homeowners associations should address issues with chickens in the same manner as it would with more traditional pets, which may include levying a fine after notice and a hearing or seeking to have the chicken removed through a lawsuit. Working with an experienced community association attorney can provide a homeowners association with guidance on whether chickens are permitted in the community and how to ensure that owners comply with the governing documents and local ordinances so that the owners in the community, and the chickens, are living their best lives.
Michael T. Pereira, Esq., is an Attorney with Hirzel Law, PLC and focuses his practice on general counsel matters and document amendments. Mr. Pereira graduated from the University of Detroit Mercy School of Law in 2018, where he graduated magna cum laude and second in his class. Following graduation from Detroit Mercy, Mr. Pereira spent nearly three years with the Michigan Court of Appeals as a research attorney and as a law clerk to Judge Patrick M. Meter and Judge Anica Letica. Best Lawyers: “Ones to Watch” recognized Mr. Pereira in 2024 for professional excellence in real estate law. He may be reached at (248) 986-2290 or mpereira@hirzellaw.com.
