No HOA for 20+ years/threat of suit

I live in a subdivision that has very poorly written and outdated CC&Rs. There has not been any kind of governing body for over 20 years. In my reading here it would appear that the CC&Rs are still in effect regardless, even though in the absence of an HOA or other enforcing body Yavapai County regularly tells homeowners that they are governed by the county zoning, which is quite different.

Some of the rules involve getting permission from a non-existent architectural committee.

I have a neighbor that has been harassing me for about 3 years. I believe this is personal and my husband and I are being targeted. I have received a "letter of demand" stating that I must remove my 5 hens and a wooden shed. First, I don't want to and the county told me I was in the right and a county agent even came to see my property after the neighbor filed a complaint three years ago and said I was in compliance. I will get her report in writing from the county. However, the way AZ seems to work, I gather the nasty neighbors' remedy is then a law suit and they could win.

I consulted an attorney and was told this could cost me upwards of $50,000 and he asked me what my chickens were worth. He said it would cost between $5,000 and $10,000 just to find out if I have a case. But that is not the point. If I comply with this they will simply find something else. As I said, this is personal. I am well known in the community and even ran for office in 2008. Although I did not win the election in my community I had nearly 70% of the vote in all three precincts. Needless to say, I was not my neighbors' candidate.

I plan on defending myself in court. But at the same time I plan on beginning the process of getting our CC&Rs revoked or amended. There are 2 Plats in this development and the CC&Rs are specific to Plat 1 and Plat 2. I will double check but I am assuming I only need to get a simple majority of the homeowners in Plat 1 to agree to either getting rid of or amending the CC&Rs and then there would be no case. So in other words, if there are 50 homeowners, if I can get 26 notarized signatures (I'll need to know how to prepare the document to present to them) I can overturn the CC&Rs. I think the neighbors would be interested to know, for instance, that according to our CC&Rs it is prohibited that they work on their car in their own driveway.

I also thought I might try to simply get a letter signed by the majority stating that they have no problem with my chickens or my shed, which I think I can do, since almost every one of them is in violation of the CC&Rs in some way. I think if they knew that this could happen to any one of them at any time just because a neighbor has nothing else to do or has a vendetta against another neighbor they would want to remove or change the CC&Rs. I will find out soon anyway. I plan on getting a plat map tomorrow and a list of all the homeowners in my plat.

So am I right in putting my energy into the removal of the CC&Rs? Should I answer the demand letter or ignore it? I'm thinking it's just a threat and they may not actually plan on taking me to court. If they do and they take the next step, then I can decide whether I want to comply at that point, but it will buy me more time to work on the removal of the CC&Rs (I have until November 30).

What are folks' thoughts?

Georgene, it doesn't matter if the county says your hens are OK, HOA documents can be more restrictive. IMHO you would be better off attempting to amend the documents to allow the hens, rather than abolishing the HOA altogether. Abolishing the deed restrictions often takes 90 - 100% affirmative vote to abolish while the percentage to amend is usually much less.

Do your current CCR's forbid livestock such as hens and chickens? If those say you can't have them, then you would be taking a big, expensive, emotional, and soul sucking gamble on trying to fight them in court.

Not saying you can't win, but even with a defunct HOA, that contract can and may still be enforceable. Check for an Article that allows for individual homeowners to enforce the Covenants, if that is in there, it may not matter that you don't have an actual functioning HOA. Which is probably why it's in there to begin with! Good luck!

So the covenants demand seeking approval but there was no governing body to seek approval from? In my opinion, the county would then be the next governing authority and they signed off on your hens. If you are able to defend yourself with confidence of winning, you could try to sue for legal costs. In the meantime I would also try a 2 pronged approach of rallying the other homeowners in amending the documents while your fight with your neighbor persists, but be careful if they catch wind. If they are that petty they may run a campaign against you and fight dirty.

This is sound advice.

Nicely put Bob.

Thanks for all your comments.

Here are more details for you. In the absence of our HOA we have been repeatedly told that county zoning holds sway. If we got rid of our CC&Rs this would truly be the case. The county limits the number and type of livestock allowed on our properties. Only 25 chickens, no pigs, two horses per acre and yes, possibly a couple of donkeys or alpacas. We have two acres. There are rules about how they are to be kept, etc.

However, I may have found something after a careful reading of the CC&Rs that may mean I am in the clear. Tell me how you read this:
"18. APPROVAL PROCEDURE: The Committee's approval or disapproval as required in the covenants shall be in writing. In the even the Committee, or its designated representative, fails to approve or disapprove within thirty (30) days after plans and specifications have been submitted to it, or in any event, if not suit to enjoin the construction has been commenced prior to the completion hearof, approval will not be required and the related covenants shall be deemed to have been complied with."
Now this wording is very vague in that it doesn't specifically refer to another paragraph or clarify what "or in any event" means. It also talks about "construction," so may not specifically cover the chickens, but it appears that the intent is that if no complaint is filed with the committee (which hasn't existed for over 20 years) and no one has sued, the person is considered in compliance. I have had my chickens for more than 4 years and my shed has been there almost 2 years.

I am currently researching the state laws concerning statute of limitations on violations of CC&Rs. I think there may be. I'm making an appointment with the original title company that signed off on the CC&Rs to see what I can find out from them and then I guess it's on to researching the AZ Statutes online and perhaps heading to the law library.

Back to getting the CC&Rs revoked or revised...Here's what it says about that in our CC&Rs:
"24. TERMS: "These covenants are to run with the land and shall be binding on the undersigned and all of its successors in title, interest or possession in all the every part of said premises for 25 years, and thereafter said covenants shall be automatically extended for successive periods of ten (10) years, unless and until the owners of a majority of the lots affected hereby amend or revoke the same by written instrument, duly acknowledged, and recorded."
Now none of the original committee members has signed this document. Only the title company and the notary. That seems problematic to me. And one of the committee members died in January of last year and as far as I know (working on that) no one was ever named successor. I am also researching if there were ever any amendments to our CC&Rs (doesn't appear to be) and whether there has been any litigation in the courts and what the outcomes were.
But #24 appears to state that a simple majority would be all that was necessary to revoke or amend our CC&Rs. So if there are 50 homeowners, I would need 26 to make it happen. We could always create new ones if we find the county zoning restrictions inadequate for our community, but they have seemed to work so far (over 20 years).

Another little wrinkle. In the CC&Rs it says this:
"1. LAND USE AND BUILDING TYPE:
"[...]No business, trade, or manufacturing of any nature or description shall be carried on or transacted in any portion of said property nor shall any part of said premises be used as a hospital[....]."

The neighbor threatening to file suit, according to my research on the internet (I am checking registrations with the corporation today to make sure], is running three businesses at his address. So not only is he not in compliance with the CC&Rs, but he may possibly have run afoul of county regulations as well.
As my lawyer said to me "how much are your chickens worth to you?" Well I might just as well as him a similar question of him: "How much is getting rid of this lady's chickens, that you can't see and are over an acre away from you, worth to you?"

I have until November 30 to respond to the Demand Letter. I realize I have a lot more research to do before I make a decision, but it appears to me I have several avenues open to me.

John you miss the point. The fact that they are in violation gives us a negotiating tool. It goes something like this: "Look, I don't know you. You have never spoken to me personally. You have never stated what it is about my chickens or my shed that disturbs you. Lots of other people in our subdivision have chickens and sheds. Perhaps I can do something to satisfy your objections. However, if you feel you must continue to go forward with this, be advised that you are also in violation of the CC&Rs and I intend to pursue any avenues open to me in that regard. So why don't we just call the whole thing off and I won't pursue this legally nor say anything to county [they are probably in violation of county regulations...I am not], and if there's something reasonable that I can do that will make my hens more palatable to you, let's discuss it."

I don't think there's anything wrong with giving that a try. I might also get a letter signed by my neighbors stating that they are perfectly happy with my chickens and my shed (and they are), so let's not cause any more disharmony in the neighborhood. May not work, but I don't see where I have anything to lose by trying. I am continuing to do research and plan on paying the attorney I contacted for an hour of his time to go over what I have found and have him advise me. I will probably ask him to write the letter or at least coach me in writing the letter if he thinks a personal letter neighbor to neighbor might be a better course of action. Keep the attorneys out of it unless they make it clear they are not willing to negotiate I say.

Kevin, there is no architectural committee, hoa or board of any kind. Hasn't been for 20+ years. But the CC&Rs still apply from what I can see in court case precedents. Not fair, but true. I either have to find something in the actual CC&Rs in my favor or change or get rid of them. Or I may be able to head this off at the pass with some sort of negotiations. I have no idea why these people are doing this, but I have an idea. I ran for political office in 2008 and they favored my opponent. I did not win, but I think this still may be a personal vendetta. Not relevant legally, but may be component in the attempt to negotiate with them. The wife has friends in high places in the court system. I guarantee you she did pay for either of the two letters two different attorneys sent me (demand letters, two different things). But I doubt her lawyer friends would be willing to take the case to court for nothing. However, they might. Again, going to court is not a good idea unless I'm SURE I have the winning hand, which, as we know in Wonderland, Alice rarely does.

The county laws DO apply unless and until an individual homeowner decides to invoke the CC&Rs and sue. Then the CC&Rs hold sway. That's what I'm finding anyway. So basically this is a great way for two lawyers to make lots of money (or only one if the threat of a law suit results in the defendant backing down, which is usually the purpose of the letter of demand).

My courses of possible action basically boil down to these: try and negotiate with the neighbor and keep the lawyers out of it (they are in violation of the CC&Rs themselves, I have discovered); get the CC&Rs amended or revoked; find something in the CC&Rs that works in my favor or invalidates them (possible...they are very old and poorly worded...may not have the proper signatures) and let them take me to court and defend myself. I would only do the latter if I felt I had an ironclad case and pretty much no case is ironclad. So I will likely try the first tactic, and if that fails go to the second. That's how I'm leaning anyway.

There was a nasty/expensive local lawsuit over a garage being built and one claiming they sent all the info to the BOD and they never heard back so they assumed (even though the docs if not responded to in 30 days) it was OK to build. Bottom line, they had to remove the garage.

Do not believe the within 30 days arguement.

Unless it's written within the governing documents.

Our governing documents specify that the Association has 30 days to reply to such requests and failure to reply produces an automatic approval.

When I was having my issue with my Association, I had a request that was never replied to. Fortunately, as Larry pointed out, I had a signed receipt for the certified letter to prove when the Association received it.

You DID sign your deed which REFERENCED the recorded CCRs.

You did NOT actually read or understand said deed BEFORE you signed.

So be it.