Do HOAs Have a Duty to Protect Against Cattle Invasions?

By Elizabeth Kness. 

Do HOAs Have a Duty to Protect Against Cattle Invasions?

For residents of Adora Trails, a master-planned community in south Gilbert, encounters with free-roaming cattle are a regular occurrence. What some initially saw as a charming relic of the town’s Wild West past has become a serious health and safety concern as the cow presence has persisted over the past few years. Cows wander the neighborhood at all hours, causing traffic jams and car accidents as they cross streets and property damage as they graze and trample on carefully landscaped yards.

A major point of contention is who has the ability and the responsibility to prevent the cows from roaming through Adora Trails. Residents have asked the Gilbert Town Council to act. But the response from local authorities has been limited, and the problem has remained, if not worsened, in recent months. Homeowners have also asked the rancher who owns the cows and the Gila River Indian Community (“GRIC”), where the owner’s ranch is located, to take preventative action. 

A closer look at Arizona law reveals why local authorities have been unable to solve the problem, and why neither the rancher nor GRIC has a responsibility to keep the cows out of Adora Trails.

Arizona Open Range Law

Local authorities are not empowered to do much except respond to calls and help herd the cows out of the streets because of Arizona livestock laws. Arizona is an open range, or “fence-out,” state. Fence-out laws place the responsibility on landowners to build fences to keep cattle off their land. This is based on the premise that, because ranching is a prominent industry for the state, it is more practical for landowners to fence their smaller, defined property boundaries than for ranchers to fence in the much larger areas needed for cattle grazing.

Although fence-out requirements tend to create a bright-line rule, confusion about the applicable law naturally arises in a place like Adora Trails. The neighborhood lies near the borders between Maricopa County, Pinal County, and GRIC, and also borders a “no-fence district.” Most of the Phoenix metropolitan area has been designated a “no-fence district,” where the fence-out rule is suspended and ranchers must contain (“fence-in”) their livestock. However, Adora Trails lies just outside of the Maricopa County no-fence district, which is outlined in blue in the image below. Therefore, the general state fence-out rule applies in Adora Trails, and it is up to property owners to fence cattle out of their property.

Image and information from Maricopa County Recorder’s Office Map.

Other state laws and city ordinances concerning livestock do not help Adora Trails residents. Although A.R.S. § 3-1401 states that “stray animals” include livestock “whose owner is known but permits the animal to roam at large on the streets…or premises of another without permission,” the statute only authorizes limited actions to be taken when stray animals are encountered. When someone comes across a stray animal, they can attempt to locate the owner or notify the Department of Agriculture, which then handles the situation. The fact that the cows come from a ranch on GRIC, which is a sovereign nation, also complicates matters. Section 6-127 of Gilbert’s Code of Ordinances states that “livestock animals shall be kept in suitable enclosures and shall not be permitted to run at large,” but the town has stated that their ability to enforce this against GRIC is limited.

Fencing the Cows Out of Adora Trails

Adora Trails homeowners have no cause of action against the rancher for property damage caused by the cows, unless their land is enclosed by a lawful fence as defined in A.R.S. § 3-1426. So, to solve the cow problem in Adora Trails, a “landowner” has to fence the cows out of the neighborhood. This leaves the question: whose job is it to build and maintain the fence?

There is a barbed wire fence along Hunt Highway intended to keep the cows on the reservation, but it has been damaged and left ineffective by trespassers. A desire to investigate the trespass and maintain the fence seems to be common ground between homeowners, the rancher, Gilbert, and GRIC. But this fence is an imperfect solution because, even if repaired and maintained, it is not a landowner fence that would create liability if livestock broke through it and caused property damage.

In Adora Trails, the responsibility to fence the cattle out is not necessarily on individual homeowners; luckily for residents, the neighborhood has a homeowner’s association. The Adora Trails Community Association (the “Association”) is a planned community that, under Arizona law and the Association’s Declaration of Covenants, Conditions and Restrictions (the “Declaration”), has a duty to maintain its common property. Planned communities are characterized by the association’s (usually a nonprofit corporation) ownership and operation of real estate in the community, which is called common area. Because the Association owns and operates the common areas, it is legally responsible for their maintenance and safety.

Furthermore, Section 10.1 of the Association’s Declaration states: “The Association shall be responsible for the maintenance, repair and replacement of the Common Area and may… [d]o all… acts which the Board deems necessary to preserve and protect the Common Area and the appearance thereof, in accordance with the general purposes specified in this Declaration.” The Declaration’s purpose includes keeping the neighborhood free from “noxious or offensive activity,” and “annoyance or nuisance,” as discussed in Section 5.4. Under Arizona law, the Declaration is a contract which binds the Association and its homeowners. To act consistently with the provisions of the Declaration, the Adora Trails Community Association has an obligation to keep the community’s common areas safe, clean, and clear of cows.

Adora Trails HOA’s Duty to Fence Out the Cows

While any public streets that might run through the Association are the town of Gilbert’s responsibility, it is up to the Association to maintain, protect, and ultimately to fence cows out of its common areas. Rather than waiting for action from Gilbert Town Council or GRIC, the Association should fulfill their obligations to homeowners by fencing the cattle out of common areas and protecting the neighborhood from more close encounters of the herd kind.