NANCY R. BENNER, Petitioner,
THE COUNCIL OF THE NARROWS ASSOCIATION OF OWNERS, Respondent.
Date Submitted: June 18, 2014
Draft Report: September 15, 2014
Exceptions Submitted: November 12, 2014
William J. Martin, III, Esquire and William C. Martin, Esquire, of MARTIN & LUNGER, P.A., Wilmington, Delaware; Attorneys for Petitioner.
Richard R. Wier, Jr., Esquire and Shannon L. Brainard, Esquire, of MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, Wilmington, Delaware; Attorneys for Respondent.
MASTER'S REPORT (Cross-Motions for Summary Judgment)
Abigail M. LeGrow Master in Chancery
The owners of units in a Sussex County condominium complex are required by various deed restrictions to obtain the approval of the condominium's governing council before undertaking any addition, alteration, or improvement to a unit. This type of deed restriction, commonly called an "architectural review covenant, " is enforceable if it articulates a clear, precise, and fixed standard the reviewing body must apply. Other than requiring the governing council's approval, the deed restrictions at issue here do not specify any standard the council must apply in considering a unit owner's proposal.
The current dispute arose when one unit owner sought to enclose her porch using large windows, rather than sliding glass doors, on the rear-side of the unit. After extensive back and forth, the governing council denied the unit owner's request, insisting that it violated the council's sliding door "rule." The problem with this decision, however, is that it rests on an interpretation of the governing documents that is unreasonable and unsupportable. Because the sections of the governing documents that require approval of the council for improvements to a unit do not contain any standard animating the factors the council should apply in evaluating a request, the sections are unenforceable under Delaware law. In addition, even if the governing documents could be read – as the council urges – to require improvements to be "substantially similar to the original construction" of the units, the council has applied that standard arbitrarily by rejecting the unit owner's request based on a different standard. For those two independent reasons, the council's denial of the unit owner's request to use windows on her porch enclosure was improper. This is my final report on the parties' cross-motions for summary judgment.
The parties each have moved for summary judgment, but each argues that disputed issues of material fact preclude entry of judgment for the opposing party. Except as otherwise noted, the following facts are not in dispute. The petitioner, Nancy R. Benner, and her late husband, George D. Benner, purchased a unit in The Narrows condominium community on July 5, 1991. The Narrows is a fifteen unit, three building condominium complex in Fenwick Island, Delaware. Nancy and George jointly owned Unit 2 in the Narrows until George's death in April 2009, at which time Nancy became the sole owner of the property.
The Council of The Narrows Association of Owners (the "Council") is an elected three member council of unit owners charged with managing the affairs of the Narrows. The Narrows, and the Council's management of its operations, is governed by a Declaration Submitting Real Property to Provisions of Unit Property Act (the "Declaration") and a Code of Regulations for the Narrows Baltimore Hundred, Sussex County, Delaware (the "Regulations, " and collectively with the Declaration, the "Governing Documents"). Both the Declaration and the Regulations were adopted and recorded in 1985 and have not been amended since that time. Although a member of the Council suggested in 2010 that the unit owners should consider updating and revising the Governing Documents, the unit owners expressed little interest in that suggestion and no revisions were undertaken.
The Governing Documents describe the units in the Narrows as three story units with "three (3) decks with loft, a screened porch and outside shower." Mrs. Benner's unit is in what the residents refer to as the "Bay Building." A picture of the Bay Building at the time the Benners purchased Unit 2 shows the five units in that building, each with uniformly sized porches on the first, second, and third levels.  On the first and second levels of each porch, a single sliding glass door leads out onto the porch. On the third level, a single door opens to the top deck, and a large picture window also overlooks that deck.
Approximately 10 years ago, the Benners replaced the screens on their porches on the first and second floor with three-season vinyl windows. In 2011, after Mr. Benner's death, Mrs. Benner decided to enclose the first and second floor porches, as several of her neighbors had done. Mrs. Benner contacted Luke Hevner, who previously had replaced her third floor picture window. On August 2, 2011, Mr. Hevner met Mrs. Benner at Unit 2, where he prepared a sketch of the work he proposed to undertake and showed her pictures of the Anderson replacement windows he suggested for the project. The windows Mr. Hevner suggested were approximately five feet wide and seven feet tall, with the bottom eighteen inches operating as a casement window that opened outward. Mr. Hevner's plan also included additional framing to support the windows, along with a knee wall to accommodate windows on the side of the structure. Mrs. Brenner approved Mr. Hevner's plan that day and gave him a deposit to purchase the windows.
Mrs. Brenner did not seek or receive the approval of the Council before she instructed Mr. Hevner to begin enclosing the porches. At a chance meeting with her next door neighbor, Raymond Buckley, as Mr. Hevner was leaving Unit 2 on August 2, 2011, Mrs. Benner told Mr. Buckley, who was a newly-elected member of the Council, about the work she and Mr. Hevner had been discussing. Mr. Buckley did not indicate to Mrs. Benner that she would need approval from the Council before beginning work.
Mr. Hevner began work on the project shortly after the August 2 meeting. On the first floor porch, he removed the existing panels and began to install the windows on the rear (west) side and south side of the enclosure, while on the second floor he removed the existing panels on the rear side. Approximately a week into the project, Mr. Hevner realized that, if the porch railing was reinstalled as planned, the casement portion of the new windows would not open. Mr. Hevner therefore suggested extending the deck an additional two feet, as other unit owners had done, to allow reinstallation of the porch railing while maintaining the functionality of the windows.
In early September, one or more of Mrs. Benner's neighbors complained to the Council regarding the work being done on Unit 2. The president of the Council, Alex Karlin, wrote to Mrs. Benner on September 9, 2011 and instructed her to cease work on the porch enclosure until a written request had been submitted and the Council had approved the work. Mr. Hevner then immediately ceased work on the enclosures.
After Mr. Karlin instructed Mrs. Benner to halt work on the construction, Mrs. Benner's attorney submitted on her behalf a written request for approval of Mrs. Benner's planned improvements, including the enclosure of the first and second floor porches and the extension of the decks on those floors.  The initial request submitted by Mrs. Benner's attorney included a description provided by Mr. Hevner of the work completed and what remained unfinished. Two days later, Mrs. Benner's attorney met Mr. Karlin and Mr. Buckley at Unit 2 to discuss Mrs. Benner's request. During that meeting, Mr. Karlin indicated that the owners of Unit 3 had expressed privacy concerns regarding the proposed deck extensions. Mr. Karlin also expressed concern regarding the proposed use of windows rather than sliding doors on the rear façade of the enclosures.
On October 9, 2011, Mrs. Benner's attorney submitted to the Council a revised request for approval of Mrs. Benner's planned improvements. The revised request continued to call for the use of windows rather than sliding doors, but reduced the size of the proposed deck extension to address the privacy concerns raised by the owners of Unit 3. On November 2, 2011, the Council sent Mrs. Benner and her attorney a letter rejecting Mrs. Benner's revised proposal. The November 2 letter explained that Mrs. Benner's request was not approved because it was "not substantially similar to the original construction of all Units at the Narrows and [was] not consistent with maintaining the „substantial similarity' of the exterior appearance of the Narrows."
The Council contends – and contended in its November 2 letter – that several provisions in the Governing Documents required Mrs. Benner to obtain the approval of the Council before beginning work on her porch, and permitted the Council to approve or deny her request based on whether the proposed improvements were "substantially similar to the original construction and installation" and would maintain the "substantial ...