Date Submitted: October 30, 2014
Draft Report: August 29, 2014
Michael R. Smith, Esquire, Neilson C. Himelein, Esquire, Michael Ryan Smith, Esquire
KIM E. AYVAZIAN MASTER IN CHANCERY
Pending before me are two motions filed by Respondents Russell H. Vester and JaKara Vester to amend their answer, defenses and counterclaims to a petition that was filed by Petitioner Henlopen Landing Homeowners Association, Inc. (the "HLHA"), and to join the president of the HLHA's Board of Directors and the property management company as additional parties to their counterclaims. In this litigation, an action to enforce certain recorded deed restrictions applicable to all homeowners in the residential subdivision known as Henlopen Landing near Lewes, Delaware, Respondents have counterclaimed, challenging Petitioner's actions as violations of the Federal and State Fair Housing Acts. Respondents now seek to hold Preston Dyer, the President of HLHA‟s Board of Directors, and Premier Property and Pool Management, LLC ("PPPM") individually liable for the alleged violations. For the reasons that follow, I recommend in this draft report that the Court permit Respondents to join Dyer as an additional party defendant to Counts II, III, V and VI of Respondents' counterclaims, and to join PPPM as an additional party defendant to Counts I and IV of Respondents' counterclaims. I also recommend that the Court permit Respondents to amend their answer, defenses and counterclaims as will be explained more fully below.
Respondents own a residence in Henlopen Landing, a community that is subject to a Declaration of Covenants, Conditions and Restrictions recorded in the Office of the Recorder of Deeds in and for Sussex County. The Declaration provides, inter alia, that:
No building, outside attached shower, fence, wall, deck, patio, bulkhead, retaining wall, swimming pool, tennis court, septic system, parking area, garage, and/or paving for driveways or garages, or any other structure of any kind shall be erected, placed or altered nor shall a building permit from Sussex County for such improvement or construction for such improvement be applied for on any improved or unimproved property in the Development until all fees to the Association have been paid and complete sets of building plans and elevations, specifications, and site plan (showing the proposed location of such building, drives and parking areas, etc.) shall have been reviewed and approved in writing by the Henlopen Landing Architectural Board.
In addition, the deed restrictions limit the height of fences to four feet, and prohibit fences from being erected in the front yard or closer to the front of the lot than one-half of the length of the side of the dwelling unit.
On or about June 24, 2011, Mrs. Vester submitted an application for modifications to Respondents' dwelling to HLHA's Architectural Review Board (the "ARB"). Specifically, Respondents sought approval for the installation of an irrigation well, a gazebo, a six-foot high fence, and to widen the existing driveway. In the application, Mrs. Vester cited the disability of one of their children as the basis for the request to exceed the permitted fence height. Respondents also wanted to extend the location of their fence closer to the front of their lot than was permitted so their dog could enter and exit their side yard through the door in the garage and not track mud and snow throughout the house in inclement weather.On July 7, 2011, Respondents received approval for all of their requests except the extension of the fence and the expansion of the driveway, which were denied. After further communications between the parties, Respondents began work on their driveway expansion. On August 6, 2011, Respondents discovered that their privileges to use the community‟s amenities, i.e., the swimming pool, had been suspended because of alleged ongoing violations of the recorded restrictions.
On November 23, 2011, Mrs. Vester, acting pro se, filed an official housing discrimination complaint with the Delaware Division of Human Relations (the "Division"), naming the "Henlopen Landing HOA, " the "BOD, " and "Premier Property Management" as respondents. After notice of the complaint was given to HLHA, an initial fact-finding conference was scheduled for January 11, 2012.The conference was postponed, and on January 13, 2012, HLHA filed a motion to dismiss the complaint in the Division. On February 29, 2012, Mrs. Vester filed an amended housing discrimination complaint in the Division, adding the three individual members of the ARB as respondents.
Meanwhile, in this Court on February 7, 2012, Petitioner filed its verified petition against Respondents to enforce the deed restrictions under 10 Del. C. § 348. As alleged in this petition, Respondents had violated the restrictions by: (1) intentionally altering their driveway without written approval of the ARB; (2) installing plantings in the area between the roadway and sidewalk without submitting an application or receiving approval from the ARB; and (3) placing garbage receptacles outside of their garage and outside of an approved enclosure. Respondents were served with a summons and copy of the complaint on February 27, 2012.On March 15, 2012, Respondents filed a notice of removal of this action to the United States District Court for the District of Delaware. A United States Magistrate Judge subsequently issued a report and recommendation that the case be remanded to this Court for lack of subject matter jurisdiction. The District Court adopted the report and recommendation, granted HLHA's motion to remand, and closed the case on May 14, 2013.
After Petitioner reopened its case in this Court, Respondents filed their answer, defenses and counterclaims on June 7, 2013,  and on June 28, 2013, Petitioner filed its answer to Respondents' counterclaims. The parties stipulated to a scheduling order that was approved on December 3, 2013, in which the parties had until February 28, 2014, to join other parties or seek amendments to the pleadings. On February 27, 2014, Respondents filed their pending motions to amend and for joinder. Following ...