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Quail Village Homeowners Association, Inc. v. Rossell

Court of Chancery of Delaware

December 10, 2018

Quail Village Homeowners Association, Inc., A corporation of the State of Delaware Petitioner,
v.
Janice Rossell, Respondent.

          Date Submitted: September 4, 2018

          Draft Report: June 25, 2018

          Gary R. Dodge, CURLEY DODGE & FUNK LLC, Dover, Delaware, Attorney for Petitioner.

          Peter K. Schaeffer, Jr., AVENUE LAW, Dover, Delaware; Attorney for Respondent.

          MASTER'S REPORT

          GRIFFIN, MASTER

         Pending before me is an action filed by a homeowners' association against a homeowner who erected an accessory structure on her property without first seeking approval from the community's architectural review committee ("ARC"). The association alleges that the homeowner uses the structure to house undomesticated cats.[1] It further claims the homeowner's feeding and housing of these cats violates the community's deed restrictions, and encourages the undomesticated cats to gather in the community, causing a nuisance or dangerous or offensive conditions in the neighborhood, further violating the community's deed restrictions. The homeowner claims that her activities with the cats, including engaging in trap, neuter, and release ("TNR") activities with feral cats coming onto her property, are not causing the conditions in the community involving feral cats but are helping to reduce the problems. The association seeks injunctive relief, and both parties seek attorney's fees. For the reasons set forth below, I recommend that the Court deny the association's claims that the homeowner violated the deed restrictions by keeping undomesticated cats on her property and by causing a nuisance through her cat activities, but grant its claim that the homeowner violated the deed restrictions by failing to seek ARC approval prior to building an accessory structure on her property. And I recommend that the Court grant injunctive relief related to submission of a request for ARC review of the accessory structure by the homeowner. Finally, I recommend that the Court decline to find a waiver of enforcement of deed restrictions has been proven in this case, or to shift fees for either side under 10 Del. C. § 348(e). This is a final report.

         I. Background

         On December 3, 2013, Plaintiff Quail Village Homeowners Association, Inc. (the "Association"), which serves as the association for the homeowners for the Village of Wild Quail Golf and Country Club ("Quail Village"), filed a Verified Complaint to Enforce Deed Restrictions under 10 Del. C. § 348 against Defendant Janice Rossell ("Rossell"), who has been a property owner and lived in Quail Village since 2004. Quail Village is governed by a declaration of restrictions (the "deed restrictions") which was executed on June 15, 1994 and recorded.[2]

         The Association asserts that Rossell committed three violations of the deed restrictions: (1) she built an accessory structure on her property without first obtaining approval from ARC in violation of Article II, section 2 of the deed restrictions ("Section 2"), and also of Article II, section 5 of the deed restrictions ("Section 5"), since the structure is used as outside housing for cats; (2) she keeps undomesticated cats on her property in violation of Section 5; and (3) her use of her property - feeding and housing undomesticated cats, and engaging in TNR activities[3]- has created a nuisance or is dangerous or offensive to the neighborhood in violation of Section 2. The Association seeks injunctive relief requiring the homeowner to apply for ARC's approval of the structure within 30 days, or remove the structure; requiring her to remove all outside cat food pans and cat pet doors within 30 days; and prohibiting her from ever keeping undomesticated cats on her property, or ever releasing them in the community. It also seeks attorney's fees under 10 Del. C. § 348(e).

         Rossell denied the Association's allegations in her April 2, 2014 answer. Rossell claims that her activities do not constitute a nuisance because there is no evidence that she uses the accessory structure to house cats or that she created the feral cat problem; instead, she argues expert testimony indicated that her actions in engaging in TNR activities with feral cats on her property help to abate the problem in the community. Further, she asserts she was notified of objections to the accessory structure only after the structure was completed and those objections were only based on her failure to submit an application for approval and the alleged use of the building to house cats, and not on the structure's size, shape, color or location, which are the factors specified for ARC consideration under the deed restrictions. Rossell also claims that she offered to submit an application after the objections were communicated to her, and her offer was refused. Finally, she asserts that the Association enforced deed restrictions as to structures on other properties in an arbitrary and capricious manner, thereby waiving or abandoning its ability to enforce the restrictions based upon equitable principles, and that the Association should pay her attorneys' fees.

         Mandatory mediation under 10 Del. C. § 348 was unsuccessful. Additional motions were filed, and the trial was rescheduled several times. The Association filed a motion for summary judgment on March 14, 2016. Master Ayvazian recommended denying that motion in a December 15, 2016 final report, which was approved by the Court on January 5, 2017. In that report, she held there are genuine issues of material fact related to Rossell's use of the accessory structure on her property, whether the cats she houses are domesticated or feral, and whether her feeding and sheltering cats and engaging in TNR activities to address feral cat problems constitute a nuisance in violation of the deed restrictions.[4] Master Ayvazian retired and this case was assigned to me. A trial on this matter was held on February 15, 2018, with the parties submitting simultaneous written closing arguments on March 21, 2018. I issued a draft report on June 25, 2018, and the Association filed exceptions on July 5, 2018, which were briefed. In this final report, I have either modified the report to address the exceptions, or consider them adequately addressed.

         II. Analysis

         The Association has the burden of proof in this matter and must show by a preponderance of the evidence that it is entitled to the relief it has requested.[5] "Proof by a preponderance of the evidence means proof that something is more likely than not ... [and] that certain evidence, when compared to the evidence opposed to it, has the more convincing force and makes [the finder of fact] believe that something is more likely true than not."[6] The three allegations of deed restrictions violations, the waiver or abandonment defense to restrictions' enforcement, and the attorney's fees claims, are addressed below.

         A. ARC approval requirements

         The first issue I address pertains to the Section 2 requirement that "no buildings or structure (i.e. swimming pool, tennis court) or addition shall hereafter be erected, altered or placed on any Lot unless the plans have been approved by the Architectural Committee."[7] That section prescribes that owners seeking to construct or alter a building or structure submit two sets of plans showing all four elevations "together with a description of the exterior materials and their color," a site plan showing the location of the building or structure on the lot, and a grading plan.[8] The accessory structure on the Rossell property is stick built, one floor and approximately eight by eleven feet.[9] There are two pet doors installed in the structure.[10]

         Deed restrictions requiring approval of an association's architectural review committee before a homeowner can erect, make alterations or improvements to a building on their property, are enforceable if they articulate "a clear, precise and fixed standard that the reviewing body must apply."[11] 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.[12] In reviewing requests under deed restrictions, approval by an association's architectural review committee cannot be "withheld unreasonably" and the burden falls on the architectural review committee to show its actions are reasonable.[13]

         It is undisputed that Rossell failed to comply with the deed restrictions' requirement that she seek approval from ARC prior to building the accessory structure on her property.[14] I next consider the issue of what is the appropriate equitable relief for that non-compliance based on the circumstances in this case.

         The Association seeks injunctive relief based upon Rossell's failure to apply for ARC's approval of the structure alone and asks that she be required to request ARC approval for the structure within 30 days or remove it. It argues that it was denied the opportunity to either approve or reject Rossell's plan to build the accessory structure, and that the integrity of the architectural review process is compromised if homeowners are allowed to ignore the application process and "ask for forgiveness" later.[15] Rossell claims that equity does not support removal of the structure when the only objection on the record is Rossell's failure to request approval.[16] She asserts that none of the objections to the building, based upon witness testimony at trial, show any issue with the building's size, shape, color or location - the factors identified in the deed restrictions for ARC to apply in evaluating the structure.[17]

         The typical remedy if a party demonstrates a violation of a right is permanent injunctive relief.[18] To obtain that relief, the party must also show that, absent the relief, it will suffer irreparable harm and that the equities balance in its favor.[19]Equity will not reward a knowing breach of restrictions.[20] But, if there was an innocent mistake on the part of the violator, or the violator's conduct was not willful and inexcusable, courts have balanced the extent of the harm caused by the violation in determining injunctive relief.[21]

          In this case, I recommend the Court grant injunctive relief requiring Rossell to submit a request for ARC review of the accessory structure on her property within 30 days after this report becomes final, and that ARC review it and decide whether it will approve the structure within 30 days after the request is filed.[22] In the interest of justice, this case will remain open for 90 days after this report becomes final to allow this Court to retain jurisdiction in the event that the process detailed above leads to additional disputes regarding Rossell's accessory structure. In devising this injunctive relief, I rely on Rossell's constructive notice of the approval requirement because the deed restrictions were recorded (even though she testified that she was unaware of the restriction requiring prior ARC approval), and that there was no evidence that the Association communicated its objections to Rossell prior to the structure's completion or that Rossell knowingly proceeded with construction at her own risk.[23] Further, it is disputed whether Rossell was subsequently told to submit an application, or to remove the structure.[24]

         This relief recognizes the ARC approval requirement in the deed restrictions, while allowing for further court review of this matter, if appropriate, based upon the limitations that apply regarding the enforcement of deed restrictions. Rossell's argument - that the Association's witnesses, who serve on ARC, failed to express specific objections to the structure based upon the deed restrictions' standards - is premature, since Rossell has not yet requested ARC's review of the structure and ARC has not responded to such a request. Further, any issues concerning the enforceability of the deed restrictions requiring ARC approval and their application by ARC, would become ripe only after that review has occurred.

         The Association also claims that the accessory structure is being used to house cats and, under Section 5, such housing must to be approved by ARC. Section 5 provides, in pertinent part, "[d]ogs, cats or other domesticated household pets may be kept, provided . . . any outside housing for any such animals or pets must be approved by the Architectural Committee."[25]

         First, the evidence fails to show that Rossell uses the structure as outside housing for cats. Rossell testified that the pet doors in the structure are locked and there was no testimony that cats are being housed in the structure.[26] In the absence of evidence showing the structure is used as outside housing for pets, the ARC approval requirement under Section 5 is not implicated.[27]

         Finally, the Association included a claim in its closing argument that Rossell's installation of pet doors in her garage and the structure violates Section 2 because she failed to obtain ARC approval for the pet doors. I discount this claim for two reasons. First, the Association initially introduced this claim at the pre-trial conference. I denied the addition of this claim, given its timing - less than a week before trial - in a case of a protracted duration where no reasons justifying the delay were offered. Further, I find the deed restrictions do not require ARC review for pet doors. The relevant deed restriction language is "[n]o buildings or structure (i.e. swimming pool, tennis court) or addition shall hereafter be erected, altered or placed on any lot unless the plans have been approved by [ARC]."[28] The common sense reading of this language is that it captures "significant change to a lot … that is both large and permanent."[29] Pet doors are not permanent, their installation does not require plans, the cost for installation is not substantial, and they do not add to or detract from the property value in a material way. They do not reach the level of alteration that would reasonably require ARC review. And there was no evidence that ARC approval had ever been sought or required previously related to other pet doors in Quail Village.

         B. Keeping cats

         It is undisputed that Rossell feeds and shelters cats on her property. Rossell testified, at the time of trial, that she was feeding 28 cats on her property - 10 living in her house and another 18 outside.[30] She had installed crates and boxes in her garage for the outside cats, which enter and leave the garage through a pet door.[31] She places the food for the outside cats in the garage, and on the front and back porches of her house.[32] The issue is whether Rossell's activities are in violation of Section 5, which states:

5. Animals. No fowl shall be raised or kept and no kennel for the breeding or boarding of dogs shall be erected, maintained or used upon any Lot, and no horses, ponies or livestock shall be housed or maintained on any Lot. Dogs, cats or other domesticated household pets may be kept, provided (1) that they are not kept, bred or maintained for any commercial purpose, and (2) any outside housing for any such animals or pets must be approved by the Architectural Committee.[33]

         Interpreting deed restrictions is a matter of contract interpretation and provisions are construed by determining original intent from the plain and ordinary meaning of the words.[34] Any ambiguities in the deed restrictions are resolved in favor of the grantee (Rossell) and against the grantor (the Association).[35] If the language is ambiguous, or "reasonably susceptible of different interpretations," the Court may consider extrinsic evidence to determine intent and "ascribes to the words their common or ordinary meaning, and interprets them as would an objectively reasonable third-party observer."[36] It is well-established that Delaware courts can look to dictionaries for assistance in determining the intended meaning of contract terms.[37]

         Section 5 provides that "cats or other domesticated household pets may be kept." There is no limitation on the number of cats that can be kept. One understanding of the language in Section 5 is that any cat may be kept, with no limitation. Under that interpretation, none of Rossell's cats (whether domesticated or not) run afoul of Section 5. However, when considering the language as a whole, I find that there is another reasonable interpretation of what was intended by that language - that the cats which can be kept are domesticated, household pets.[38] The deed restrictions do not define cats, domesticated household animals, or keeping a pet or animal. The dictionary describes "domesticated" as adapted "over time from a wild or natural state to [live] in close association with and to the benefit of humans," and "household" as "those who dwell under the same roof." [39] "Keep" can mean to "have in control," "retain in one's possession or power," or "take care of."[40]

         Under Delaware law, a person is "keeping" a cat if she has possession or control of the cat and, if the animal is a stray domesticated cat, she has fed them for three or more consecutive days.[41] Looking at both the dictionary definition of "keeping" and Delaware law, Rossell would be considered as keeping the cats if she has possession and control over them, and also if the cats are stray domesticated animals that she has fed three or more days. Stray cats are defined by Delaware law as having "no known owner" or "not wanted by its owner."[42] And, feral cats are defined as the offspring of abandoned domestic cats who revert "to a semi-wild state and [live] outside in family groups called colonies," and have temperaments of "extreme fear and resistance to contact with humans."[43]

         I next consider, for purposes of Section 5, whether Rossell's cats are "domesticated," "stray domesticated," or feral cats.[44] The TNR expert testified that a domesticated cat is one that "lives within a home" - an "indoor cat."[45] She further commented that strays are cats that can be domesticated and brought into a home, while feral cats are "pretty much" wild cats - ones "you cannot touch."[46] She further stated that a domesticated cat, if it has been outside and had to fend for itself, can become "very feral."[47] She referred to Rossell's activities regarding "feral cats" at her home, and Rossell testified about having feral cats in her house, which had become domesticated.[48] She stated that her "feral cats" were wild but are not now as she "can pet most of them."[49]

         It appears to me that there is not always a bright line between whether a cat is domesticated or feral. The characteristics of a cat that define it as one or the other may change depending upon the circumstances of the cat's life. Some cats are cared for inside a home throughout their lives and are clearly "domesticated." Others are feral - or wild - throughout their lives, living outside in colonies in fear of contact with humans. However, there are cats, such as stray domesticated cats, that may be abandoned by their owners and straddle the line between feral and domesticated cats.

         Considering all of the evidence, I find the Association has not met its burden of showing that Rossell has violated Section 5. The evidence shows that Rossell's cats, in general, are sufficiently comfortable with human contact to enter her garage to seek shelter, go up on her porch to eat, and to be petted by her; they do not demonstrate the extreme fear and resistance to human contact consistent with feral cat behavior. Although Rossell and the TNR expert referred to Rossell's cats as "feral" at times in their testimony, when I compare their views on the differences between feral and domesticated cats and their descriptions of her cats, I conclude that, based upon the evidence presented, Rossell's cats are generally "stray domesticated" cats that are, mostly, living in her garage - or under the same "roof" as Rossell. Therefore, I recommend that the Court find that Section 5 does not prohibit Rossell from keeping the cats. [50]

         C. Nuisance

         The next issue focuses on whether Rossell, through her TNR activities and feeding and housing multiple cats on her property, has violated Section 2 by creating a nuisance. Section 2 prohibits the use of "any Lot which creates a nuisance or which is dangerous or offensive to the neighborhood."[51] I conclude the Association has not shown that Rossell's actions on her property have created a nuisance in violation of the deed restrictions.

         As discussed previously, as of February of 2018, Rossell was feeding and providing shelter to approximately 28 cats on her property. That number is decreasing (down from 40 cats at the time of her deposition) as her cats, which are all spayed or neutered and older, die.[52] Rossell conducts trap, neuter and release activities on cats on her property.[53] Rossell testified that she traps the cats, works with a TNR organization to take the cats to be spayed or neutered and vaccinated and, once they have recovered from the surgery, releases the cats back onto her property.[54]Rossell testified that she began her TNR activities because she wanted to "keep the [cat] population down."[55] The TNR expert opined that Rossell's activities "definitely decrease" the feral cat population at Quail Village and are beneficial to the community.[56] She further stated that if you stop feeding feral cats, they do not move away but stay in the colony, hunting and "dumpster diving."[57] She also testified that feral cats roam the community and, if they have not been vaccinated for feline leukemia, can expose other outside cats to that contagious and dangerous disease.[58]

         The evidence showed that the Association has received complaints from homeowners with property near Rossell about the cats' intrusion onto their property, spraying and defecating, for years.[59] Rossell's neighbor, Carrie Bush ("Bush"), who lives two doors down from Rossell, testified that she complained to the Association about the cats, starting approximately 10 years ago, when multiple cats began invading her property on a regular basis - defecating in her yard so that she has "had to wash poop off [her children's] sneakers in the sink many, many times," and destroying her property, including tearing up her children's play set, getting into her garage and screened porch and breaking through the porch screen to get out.[60] She testified cats also have gotten into her house on three occasions, including one time when a cat got into a second floor closet, and another time when a cat urinated on the rug on the second floor of her home.[61] Bush further stated that, originally, she didn't know where the feral cats were coming from - that there "used to be an Amish farm behind the woods," and she didn't know if they "vacated and left their cats."[62] She described the cats as "wild cats."[63] She also testified that there have been litters of kittens left on her property in the last year.[64] The neighbor's testimony did not establish that the cats complained about came from the Rossell property.

         Further, there was testimony by Rossell and the TNR expert that there are other cats in the community that are not spayed or neutered.[65] Rossell testified that the kittens that were on Bush's property in the last year were not hers, since all of her cats were spayed or neutered and unable to have kittens, and that there is a barrier - a reservoir filled with water up to eight feet deep - located between her property and Bush's property.[66]

         Nuisance is not defined in the deed restrictions, so I look to Delaware law. Delaware courts recognize public nuisances and two types of private nuisances. A public nuisance claim is based upon an "unlawful act . . . that endangers the lives, safety, health or comfort of the public."[67] I do not find public nuisance is applicable in this situation, since only Rossell's close neighbors are involved in this matter.[68]

         There are two types of private nuisance recognized in Delaware. The doctrine of nuisance per se is an intentional interference with another's property rights, or an interference resulting from "abnormally hazardous activities" conducted on the person's property, or an interference in violation of a statute intended to protect public safety.[69] That doctrine is inapplicable here because Rossell's activities - in feeding and sheltering cats and engaging in TNR activities - are lawful and there is no evidence that her activities are abnormally hazardous or that she is intentionally interfering with her neighbors' property rights. The other type of private nuisance is nuisance-in-fact, which exists when a person, acting lawfully on her own property, permits acts or conditions that "become nuisances due to circumstances or location or manner of operation or performance."[70] In other words, a person's use of their property "constitutes an unreasonable invasion of their neighbor's property rights," and interferes with their neighbor's reasonable enjoyment of their property, when the facts are considered from an objective point of view."[71] Reasonableness is usually determined by "balancing the seriousness of the inconvenience, annoyance or harm produced by the complained of use against the fitness or utility of the use causing the harm."[72]

         There do not appear to be any nuisance cases in Delaware involving cats. The only nuisance case about animals I found in Delaware involved a complaint about 25-30 barking dogs cared for by a neighbor. In that case, for a nuisance to warrant injunctive relief, the Court held the plaintiff must "clearly establish that he suffers substantial harm," and that the barking dogs, which ...


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