HOLLINGSWORTH et al.
SZCZESIAK et al.
Suit by Charles A. Hollingsworth and others against Edward J. Szczesiak and others to enjoin violation of restrictive covenants applicable to residential subdivision. The Court of Chancery, Bramhall, Vice-Chancellor, held that erection of unusually large garage, different in structure and design from other buildings in subdivision, violated restrictive covenants and that the evidence established that such violation was with deliberate intent to evade covenants and that defendants should be enjoined from violating restrictive coverants and required to remove garage from property, unless they could agree with plaintiffs within thirty days upon a change of structure to comply with requirements of covenants.
Order in favor of plaintiffs in accordance with opinion.
[32 Del.Ch. 276] Complaint for Injunction by plaintiffs against defendants [32 Del.Ch. 277] arising out of alleged violation by defendants of certain restrictive covenants covering the property of defendants Edward J. Szczesiak and Rita M. Szczesiak, his wife, situate in New Castle County, in a development known as ‘ Vilone Village’ .
The case was before the court for final hearing upon complaint, answer, affidavits, stipulation of facts, oral testimony and exhibits.
John M. Bader, Wilmington, for plaintiffs.
John J. DeLuca and Joseph A. Julian, Jr., Wilmington, for defendants.
Defendants Szczesiak are residents and owners of a property situate in a recent development known as ‘ Vilone Village’, a residential subdivision located in the incorporated town of Elsmere, New Castle County, Delaware. Plaintiffs are residents and property owners of said ‘ Vilone Village’ and reside in the vicinity of the residence of the defendants Szczesiak. The property of the defendants Szczesiak and the properties of the plaintiffs are of all brick construction upon a concrete foundation. Shortly after the purchase of the property now owned and occupied by them the defendants Szczesiak employed the defendant Podralski to erect on their property a building for the purpose of housing a truck and an automobile and also including a small space for a work bench and work facilities. This building was to be of concrete block construction with a brick veneer facing with a flat roof and was of a size somewhat larger and with entrances somewhat different from those of the usual private two-car garage. At the time defendants were first notified that there was objection to the building, the foundation was laid and some of the walls were two or three feet high. The property was substantially completed, with the exception of the roof and the doors, when work was stopped as a result of a restraining order issued against the defendants in this court.
[32 Del.Ch. 278] Applicable to the properties in ‘ Vilone Village’ are certain restrictive covenants contained in an instrument executed by the original owners of said development, one Alfred J. Vilone and Olga M. Vilone, his wife, dated August 27, 1947, and of record in the Office of the Recorder of Deeds of New Castle County, regulating the design, construction, location, use and occupancy of the buildings which might be erected in said development. The restrictions pertinent to this case are as follows:
1. If the parties hereto or any of them, or their heirs or assigns, shall violate or attempt to violate any of the covenants herein, it shall be lawful for any other person or persons owning any real property situated in said development or subdivision to prosecute any proceedings at law or in equity against the persons violating or attempting to violate any such covenants and either to prevent him or them from so doing or to recover damages or other dues for such violation;
‘ 2. No structures shall be erected, altered, placed or permitted to remain or be used on any residential building plot other than one detached single-family dwelling for residential use only, not to exceed two stories in height and a private garage for not more than two cars.
‘ 3. No building shall be erected, placed or altered on any building plot in this subdivision until the building plans, specifications and plot plan showing the location of such building have been approved in writing as to conformity and harmony of external design with existing structures in the subdivision, and as to location of the building with respect to topography and finished ground elevation, by a committee composed of Alfred J. Vilone, Olga M. Vilone and Mary Silicato of No. 1712 Linden Street, Wilmington, Delaware; or by a representative designated by a majority of the members of said committee. In the event of the death or resignation of either of said committee, the remaining member or members shall have full authority to approve or disapprove such design and location, or to designate
a representative with like authority. In the event said committee, or its designated representative, fails to approve or disapprove such design and location within thirty days after said plans and specifications have been submitted to it or, in any event, if no suit to enjoin the erection of such building or the making of such alterations has been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with. Neither the members of such committee, nor the designated representative shall be entitled to any compensation for services performed pursuant [32 Del.Ch. 279] to this covenant. The powers and duties of such committee, and of its designated representative, shall cease on and after January 1, 1953. Thereafter the approval described in this covenant shall not be required unless, prior to the said date and effective thereon, a written instrument shall be executed by the then record owners of a majority of the lots in this subdivision and duly recorded appointing a representative, or representatives, who shall thereafter exercise the same powers previously exercised by said committee.
‘ 9. No noxious, or offensive trade or activity shall be carried on upon any portion of the above described tract or parcel nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.
‘ 10. No trade, business, commerce, industry or occupation shall be conducted on any residential lot or in any residential structure erected thereon except where a licensed physician or dentist uses a portion of the dwelling in which he resides as an office.
‘ 13. No detached garage shall be located nearer than sixty feet to a front line. No garage shall be more than one story in height. Each garage shall be constructed of like materials and shall conform in appearance with the architectural design of the dwelling structure on each lot.’
Plaintiffs contend that the defendants have violated the restrictive covenants covering their property in that (1) there was no approval of the plans, specifications and general plot plan of the building proposed to be erected by the committee set up in the instrument of August 27, 1947; (2) that any plans and specifications which might have been presented for this building as contemplated by defendants did not comply with the general plan for the development and would not have been approved by the committee; (3) that the proposed building is not in compliance with the restriction limiting such construction to ‘ a private garage for not more than two cars'; (4) that the building in question is not ...