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Brandywood Civic Association v. Freas

Court of Chancery of Delaware

June 29, 2018

Brandywood Civic Association
Gary Freas

          Date Submitted: April 5, 2018

          Robert J. Valihura, Jr., Esquire The Law Office of Robert J. Valihura, Jr.

          R. Karl Hill, Esquire Seitz VanOgtrop & Green, P.A.

         Dear Counsel:

         Pending before me is an action filed by a homeowners' association alleging a homeowner violated the community's deed restrictions by erecting a fence without submitting written plans to the homeowners' association. The homeowner asserts that plans for the fence were communicated orally to, and reviewed by, the association and he has not failed to submit plans in violation of the deed restriction requiring association prior approval. Further, the homeowner claims that the deed restrictions are unenforceable because they are vague, imprecise and unclear, and the association's actions applying the deed restrictions to his Property are unreasonable. The association seeks injunctive relief requiring removal of the fence, and both parties seek attorney's fees. The association filed a motion for judgment on the pleadings. For the reasons set forth below, I recommend that the Court deny the association's motion for judgment on the pleadings. This is a final report.

         I. Background

         Plaintiff, Brandywood Civic Association ("BCA"), which serves as the association for homeowners in Brandywood, a community of single family homes, filed a Verified Complaint on October 11, 2017 to enforce Brandywood's Declaration of Restrictions (the "Deed Restrictions") under 10 Del. C. § 348 against Defendant, Gary Freas ("Freas"), who is an owner and resident of Brandywood at 2133 Brandywood Drive, Wilmington, DE 19810 (the "Property").[1] BCA asserts that in early April of 2016 it became aware that the Owner began making "some exterior modifications" on the Property.[2] A BCA representative met with Freas, notifying him that the Deed Restrictions required that he submit plans for its approval prior to making modifications. During that meeting, Freas denied knowing about the Deed Restrictions. He also "described [his] plans" to the BCA representative related to the placement of a shed on the northside of the Property, and erection of two fences - a six foot high fence between the Property and a neighboring property at 2133 Brandywood Drive ("disputed fence") and a separate six foot high privacy fence to enclose his backyard ("privacy fence").[3] Although no written plans were submitted to BCA, the directors of the association "undertook the review process . . . based upon information verbally conveyed" by Freas to BCA.[4] Later, the BCA representative met with Freas again to relay BCA's decisions regarding his modifications and followed up with a letter to him on May 13, 2016 ("BCA Letter").[5] BCA approved Freas's shed and the privacy fence, but "pursuant to Article 3 of the deed restrictions," denied the request to build the disputed fence.[6] It is undisputed that, after receiving notice about BCA's denial, Freas has not removed the disputed fence.

         BCA claims that Freas installed multiple fences and a shed without submitting written plans to BCA in advance, in violation of the Deed Restrictions and has not removed the disputed fence, despite "multiple efforts' to seek his "conformity to the deed restrictions."[7] As a result, Plaintiff seeks injunctive relief in the form of removal of the fence and an award for fees, costs, and expenses under 10 Del. C. § 348 (e).

         On November 17, 2017, Freas filed his Answer to the Complaint in which he denies failing to submit plans to BCA, argues that the claims in the Complaint are barred because the Deed Restrictions lack clear, defined, or fixed standards of application, and because of BCA's prior conduct related to enforcement of the Deed Restrictions, and its conduct related to the disputed fence.[8] Freas also seeks attorney's fees under 10 Del. C. § 348 (e).

         Mandatory mediation according to 10 Del. C. § 348 was held on December 17, 2017 but was unsuccessful. On January 17, 2018, BCA filed a motion for judgment on the pleadings, which is fully briefed.[9]

         II. Analysis

         In determining a motion for judgment on the pleadings under Court of Chancery Rule 12(c), "a trial court is required to view the facts pleaded and inferences to be drawn from such facts in a light most favorable to the non-moving party."[10] I must take all well-pleaded facts alleged in the complaint as admitted and can only grant a motion for judgment on the pleadings when no material issue of fact exists and the movant is entitled to judgment as a matter of law.[11] Courts have held that unambiguous contracts are appropriately resolved on a motion for judgment on the pleadings because there is no need to resolve material disputes of fact.[12]

         In its motion for judgment on the pleadings, BCA claims that the Deed Restriction requiring homeowners to submit written plans for approval by BCA prior to erecting structures or fences is clear and unambiguous, Freas has not submitted written plans for BCA approval, and, consequently, Freas violated that Deed Restriction and the injunctive relief requested by BCA - removal of the disputed fence - should be granted.[13] Freas responds that the Deed Restrictions are ambiguous, and the approval standards articulated in the Deed Restrictions are vague and unenforceable and were improperly applied in Freas's situation.[14] He argues that the relevant Deed Restriction language requires the BCA decision be in writing, not the plans; BCA had sufficient information from Freas to vote on the plans so the issue concerning the timing and form of the plan submission is waived or estopped; and the decision to disapprove the disputed fence was arbitrary and no reasons for disapproving the request were identified. As a consequence, Freas seeks denial of the motion, claiming there are material issues of fact regarding the enforcement of the restrictions which require factual development.

         Deed restrictions requiring approval of an association or its architectural review committee before a homeowner can erect a structure on his property, are enforceable if they articulate "a clear, precise and fixed standard that the reviewing body must apply."[15] However, such restrictions "are viewed with suspicion due to the tendency of such review to be arbitrary, capricious and therefore unreasonable," and are strictly construed.[16] If the restrictions are "vague, imprecise, or unclear, [they] are normally not enforceable."[17] And, in reviewing requests under restrictions, approval by an association or its architectural review committee cannot be "withheld unreasonably" and the burden falls on the association to show its actions are reasonable.[18]

         If the Deed Restriction at issue is unambiguous, and there are no material issues of fact in dispute, then this matter is appropriately resolved through a motion for judgment on the pleadings. Section 3 of the Deed Restrictions provides:

"No building, fence, wall or other structure shall be commenced, erected or maintained . . . until the plans and specifications showing the nature, kind, shape, height, material floor plans, color scheme, location and approximate cost of such structure . . . shall have ...

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