Submitted: November 7, 2013
Dear Ms. Higgins, Mr. Higgins, and Mr. Valihura:
Disputes between a condominium council and a few unit owners are all-too-often counterproductive and expensive. This dispute is about access to address a possible mold problem. If there is mold, it may spread during the delay occasioned by this litigation. That would increase costs, not only to the condominium council and the unit owners contesting the council's proposed course of conduct, but also possibly for the unit owners whose units were free of mold at the time the council sought to act. With its common elements, a condominium is not readily subdivided into isolated component parts-some parts are owned individually by the unit owners, and some common elements fall under shared ownership.
Yet, there are important private property concepts at work. The unit owners do own their units, but their rights may be subject to statute and to the terms of the condominium declaration. Indeed, as a practical matter, access to some common elements may effectively be achieved only through a particular unit. The right of the condominium council to gain access to a common element through a private unit also may be limited or conditioned. Ultimately, when the unit owner objects to the council's request for access, the analysis of whether the objection is appropriate begins with the condominium declaration, which must be interpreted in the particular factual context.
A condominium benefits from a cooperative relationship among the condominium council and the individual unit owners. Unfortunately, when there is hostility or resentment or disagreement, the benefits of the condominium model can be diminished. This case-regardless of how it eventually turns out-is an unfortunate example of what can happen.
This is a review, under Court of Chancery Rule 144, of a Master's Final Report. The standard of review is de novo. Because the Master's decision was made in response to a motion for summary judgment, the parties agreed that the Court could conduct its analysis based on the record that was before the Master. Summary judgment, of course, may be granted only if no material fact is in dispute and the moving party is entitled to judgment as a matter of law.
Plaintiff The Council of The Pointe at Bethany Bay Condominiums (the "Council") seeks access to the unit owned by Defendants Michele A. Higgins and Terrence S. Higgins (the "Owners") to inspect for and, if appropriate, to remediate mold. The Owners have resisted that effort for several reasons: (1) they have already complied with the Declaration; (2) they are being harassed by the Council because they have complained about one of the Council's contractors; and (3) there is no reliable or credible evidence of mold that would support the remediation contemplated by the Council, which may cause substantial and unnecessary damage to their uniquely decorated unit.
During the course of the proceedings before the Master, the Council conceded that there are material factual disputes about the mold and the testing. The Council, however, asserts that it has access rights to the Owners' unit that would allow performance of the work it deems necessary.
Two provisions of the Declaration are relevant:
The Council shall maintain, repair, replace, and manage, and make any additions or improvements to, the Common Elements and the Limited Common Elements as provided in the Code of Regulations;
The Council shall have an easement to enter any Unit at any time to make emergency repairs necessary to protect any part of the Property from damage or further damage, and shall have the right to enter any Unit on reasonable notice to the respective Owner to perform such routine maintenance or other action as may be necessary to preserve any part of the Property.
The Declaration's grant of access to the units is consistent with Delaware's Unit Property Act:
The council shall have an easement to enter any unit to maintain, repair or replace the common elements, as well as to make repairs to units if such repairs are reasonably necessary for public safety or to prevent damage to other units or to the common elements.
The Council moved for summary judgment on Count I and Count II of its Complaint. Through Count I, it sought access to the Owners' unit (a) to assess the cost and scope of work necessary to address the mold and to rehabilitate the damage that the mold has caused; and (b) to carry out such repairs as might involve the Owners' unit. By Count II, more generally, it asked for an ...