Daily Development for Friday, July 23, 1999
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
SERVITUDES; RESTRICTIVE COVENANTS; PETS: Vietnamese potbellied pig is not "livestock" and is appropriate as a pet under association restriction prohibiting "livestock."
Gebauer v. Lake Forest Property Owners Association, Inc., 723 So.2d 1288 (Ala. App. 1998).
A property owners association sued a resident, claiming that the resident, in keeping her pet Vietnamese potbellied pig, violated the neighborhood's restrictive covenant forbidding livestock The lower court found the potbellied pig to be livestock and that her presence constituted a nuisance, and ordered the pig to be permanently removed from the neighborhood. The resident appealed this ruling, and the Court of Civil Appeals held that there was no evidence to support the conclusion that keeping a pet Vietnamese potbellied pig violated the neighborhood's restrictive covenant forbidding livestock and that the evidence did not support a finding that the keeping of the pig as a pet created a nuisance in the neighborhood. Included in the critical evidence in this case was testimony explaining that these pigs are often raised as pets in the United States, not livestock, and the submission of a videotape titled "A Day in the Live of Taylor," which showed the Vietnamese potbellied pig (Taylor) walking around the house, going up and down stairs, eating her treats, getting her belly scratched, and doing tricks like sitting on command and performing some sort of pig dance. Noteworthy, too, was the fact that Taylor was housebroken and had in an igloo shaped dog house lined with homemade afghans, although more frequently she slept in the house in her own room. The court also observed that while neighborhood dogs could be heard barking in the background of the tape, with the "exception of an oink, oink here and an oink, oink there" the pig was quiet. The court concluded that, "There does not appear to be a rambunctious bone in [the pig's] body."
The court includes lots of other swineallusions in its opinion for parties interest in collecting judicial esoterica. As to the critical question of what constitutes "livestock," the court focussed upon whether animals are bred for companionship or for consumption.
Comment 1: The above report reflects the emphasis of the appeals court opinion, which clearly addresses the question of whether the pig constituted "livestock." In fact, however, the prohibition in question stated:
"No livestock of any description may be kept or permitted on the property with the exception of dogs, cats, and other animals which are qualified household pets, and which do not make objectionable noise or constitute a nuisance or inconvenience to owners of other lots nearby."
Under this definition, the question of whether Taylor was livestock seems beside the point. The definition of "livestock" seems very broad in this restriction, including even dogs and cats. In fact, in some parts of Asia, dogs, at least, are "bred for consumption" within the court's definition of livestock. Thus, the more relevant question is whether Taylor, like most dogs and cats (although the editor disagrees about cats), is a "qualified household pet."
Comment 2: A concurring opinion makes the point that Alabama reads restrictive covenants narrowly so that such covenants "will not be extended by implication or enlarged by construction to include anything not plainly prohibited and all doubts and ambiguities must be resolved against the party seeking enforcement." For this judge, the question is a "slam dunk" for Taylor.
In the residential community, the editor would not be so quick to embrace the traditional "strict construction" approach. Such communities need room to breath and to self govern. There is room enough, through judicial application of the probable intent of the provisions and some protection of vested interests through the withholding of injunctions, to skirt difficulties with vindictive or overly bureaucratic associations leaders, as appeared to be the case here.
Comment 3: The real question is why this case had to be appealed. What evil pig frightened this trial judge in his cradle that he not only found little Taylor to be in violation of the restriction but also a common law nuisance?
Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or email@example.com
Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.