      IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


Henlopen Landing Homeowners                       )
Association, Inc.,                                )
                   Petitioner                     )    C.A. No. 7229-MA
                                                  )
               v.                                 )
                                                  )
Russell H. Vester and Jakara Vester,              )
                   Respondents                    )


                                MASTER’S REPORT

                            Date Submitted: October 30, 2014
                            Draft Report: August 29, 2014
                            Final Report: February 25, 2015


         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.1      Respondents


1
    42 U.S.C. ch. 36 and 6 Del. C. ch. 46.
                                        Page 1 of 23
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.

Factual Background2

      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.3 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


2
  This section is based on the uncontested facts in the pleadings, except as
otherwise indicated.
3
  Ex. A of the Complaint.
                                     Page 2 of 23
      reviewed and approved in writing by the Henlopen Landing Architectural
      Board.4

      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.5

      On or about June 24, 2011, Mrs. Vester submitted an application for

modifications to Respondents‟ dwelling to HLHA‟s Architectural Review Board

(the “ARB”).6 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. 7

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



4
  Id. at 24, ¶ 7.6.1.
5
  Id. at 27, ¶ 8.2.1
6
  Ex. B of the Complaint.
7
  The parties dispute whether Respondents based their request for an extension of
the location of the fence on their son‟s disabilities.
                                       Page 3 of 23
their driveway expansion.8 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.

Procedural History

      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, 2012.9

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. §

348.10 As alleged in this petition, Respondents had violated the restrictions by: (1)

intentionally altering their driveway without written approval of the ARB; (2)


8
   The parties dispute whether written approval of the driveway expansion was
given.
9
   As will be discussed below, the parties dispute whether notice of the
administrative complaint was given to the other named respondents.
10
   Docket Item 1 (“DI”)
                                     Page 4 of 23
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, 2012.11 On March 15, 2012, Respondents filed a notice of removal of this

action to the United States District Court for the District of Delaware.12 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. 13 The

District Court adopted the report and recommendation, granted HLHA‟s motion to

remand, and closed the case on May 14, 2013.14

      After Petitioner reopened its case in this Court, Respondents filed their

answer, defenses and counterclaims on June 7, 2013,15 and on June 28, 2013,

Petitioner filed its answer to Respondents‟ counterclaims. 16 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



11
   DI 4-5.
12
   DI 6-7.
13
   Henlopen Landing Homeowners Assoc., Inc., v. Vester, C.A. No. 12-308-RGA-
CJB (D.Del. Apr. 19, 2013) (Magistrate‟s Report). DI 11.
14
   Henlopen Landing Homeowners Assoc., Inc., v. Vester, C.A. No. 12-308-RGA
(D.Del. May 14, 2013) (ORDER). DI 10.
15
   DI 14.
16
   DI 18.
                                     Page 5 of 23
pleadings.17 On February 27, 2014, Respondents filed their pending motions to

amend and for joinder.18 Following the submission of the parties‟ briefs, oral

argument on the two motions took place on May 19, 2014, at which time I reserved

decision.

Issues

         Respondents are seeking to join Dyer and PPPM as additional parties to their

counterclaims under Rules 13(h) and 20(a).19 According to their motion, Dyer is

president of the Board of Directors of HLHA, and one of the original developers of

Henlopen Landing. As president of the Board of Directors, Dyer allegedly was

involved in decisions affecting Respondents‟ use and enjoyment of their residence,

which decisions Respondents now claim violated the fair housing laws.

Furthermore, as president of the Board of Directors, Dyer signed the verification to

the enforcement petition, an action that was initiated after Mrs. Vester filed her

housing discrimination complaint in the Division. Respondents now claim that the

filing of this petition was in retaliation for their filing the housing discrimination

complaint, and thus also violates the fair housing laws because it was intended to

coerce, intimidate, threaten or otherwise interfere with the Vesters‟ rights under



17
   DI 26.
18
   DI 29-30.
19
   It appears from the caption of the proposed amended answer, defenses and
counterclaims attached to their motion that Respondents are seeking to substitute
                                       Page 6 of 23
those laws. PPPM, whom Respondents also seek to join, allegedly was involved in

the carrying out the instructions of HLHA and Dyer, and was a named respondent

in Mrs. Vester‟s housing discrimination complaint filed on November 23, 2011.

      Respondents propose generally amending the factual allegations in support

of their counterclaims to include allegations about Dyer‟s individual role in this

dispute and the actions and statements allegedly undertaken or made by agents of

PPPM. Respondents seek to impute the actions of its agents to PPPM and to hold

Dyer, in his individual capacity as well as his capacity as president of the Board of

Directors, liable for allegedly unlawful conduct under the Federal and State Fair

Housing Acts.20

      Petitioner opposes the motions, arguing that Respondents‟ request to add

Dyer and PPPM as parties is futile because the claims against them are time-

barred. According to Petitioner, the Federal and State Fair Housing Acts similarly

impose a two-year statute of limitations on discrimination claims, and the

limitations period began to run on February 7, 2012, when the last alleged


Dyer and PPPM for HLHA as counterclaim defendants. In the text of the proposed
amended counterclaims, however, HLHA is included as a counterclaim defendant.
20
   Respondents have counterclaimed for intentional discrimination (Counts I and
IV), failure to make reasonable accommodation (Counts II and IV), and retaliation
(Counts III and VI), under both the Federal and State Fair Housing Acts. See 42
U.S.C. §§3604(b) & (f)(2), 3604(f)(3)(B), 3617; 6 Del. C. §§ 4603(b)(2),
4603A(a)(2), 4618.        Respondents seek to add Dyer to their reasonable
accommodation and retaliation claims (Counts II, III, V and VI) and to add PPPM
to the intentional discrimination claims only (Counts I and IV).
                                     Page 7 of 23
discriminatory occurrence took place, i.e., when HLHA filed its restriction

enforcement petition. Thus, when the Vesters filed their motions to amend and for

joinder on February 27, 2014, the two-year limitations period had expired 20 days

earlier. Petitioner also argues that Respondents‟ housing discrimination complaint

filed in the Division did not toll the limitations period because neither Dyer nor

PPPM were properly named as parties to the administrative proceeding or were

given notice. Petitioner contends that without a tolling of the statute of limitations,

Respondents‟ proposed amendments – including changing the party or the name of

the party against whom a claim is asserted – are only permitted to relate back to the

date of filing if:

         within 120 days of the filing of the complaint, or such additional time the
         Court allows for good cause shown, the party to be brought in by
         amendment: (A) has received such notice of the institution of the action that
         the party will not be prejudiced in maintaining a defense on the merits; and
         (B) knew or should have known that, but for a mistake concerning the
         identity of the property party, the action would have been brought against
         the party.21

Petitioner argues that more than 120 days have elapsed and that there was no

mistake made in this case.        According to Petitioner, Respondents‟ failure to

previously add Dyer and PPPM was intentional, and for this reason their motions

should be denied. Finally, Petitioner argues that Respondents‟ efforts to pierce the




21
     Court of Chancery Rule 15(c)(3).
                                        Page 8 of 23
corporate veil of the HLHA to attack Dyer directly must fail due to Respondents‟

failure to plead with specificity any acts of fraud.

         Respondents argue that the statute of limitations on the July 7, 2011 denial

of their request for a reasonable accommodation was tolled because of the

pendency of the administrative proceedings before the Division. Even without the

tolling provision, Respondents argue that under the continuing violation doctrine,

they can still pursue their reasonable accommodation claims because an action is

timely as long as the last act evidencing the continuing practice falls within the

limitations period. According to Respondents, the two-year limitations period on

their reasonable accommodations claims has not yet run because on July 7, 2011,

the same day that Mrs. Vester learned her request for an exception to the location

of her fence had been denied by the ARB, she notified PPPM that she wanted to

appeal the decision and requested information about the appeal process.22

Respondents also allege that on February 17, 2012, through counsel by e-mail to

Petitioner‟s attorney, they renewed their request to install a six foot fence closer to

the front yard than is allowed as a reasonable accommodation to their son‟s

disability. The request stated that failure to approve the requested accommodation

by the end of February 2012 would be considered a denial. On or about May 24,

2012, Respondent‟s attorney again requested that Petitioner approve the location of


22
     Verified Petition, Ex. C. DI 1.
                                       Page 9 of 23
the fence as a reasonable accommodation for the disability of Respondents‟ child,

and provided verification of the child‟s disability and need for accommodation.

Since neither of these subsequent requests was approved, Respondents argue that

they must be considered constructively denied, and that these denials fell within

the limitations period.

      Respondents further argue that because Dyer was personally involved in the

decisions to deny Respondents‟ repeated requests for a reasonable accommodation,

he can be joined as a party to Counts II and V of the counterclaims, and because

Dyer authorized the filing and maintaining of Petitioner‟s enforcement petition, he

can be joined as a party to Counts III and VI of the counterclaims (retaliation

claims). In a similar vein, Respondents argue that PPPM can be joined as a party

to Counts I and IV of the counterclaims (intentional discrimination) because of its

conduct toward or actions taken against Respondents that occurred both within and

outside of the limitations period under the continuing violation doctrine.

Analysis

      As indicated below, federal law provides for the private enforcement of the

federal fair housing laws:

      (1)(A) An aggrieved person may commence a civil action in an appropriate
      United States district court or State court not later than 2 years after the
      occurrence or the termination of an alleged discriminatory housing practice,
      or the breach of a conciliation agreement entered into under this subchapter,
      whichever occurs last, to obtain appropriate relief with respect to such
      discriminatory practice or breach.

                                     Page 10 of 23
      (B) The computation of such 2-year period shall not include any time during
      which an administrative proceeding under this subchapter was pending with
      respect to a complaint or charge under this subchapter based upon such
      discriminatory housing practice. This subparagraph does not apply to
      actions arising from a breach of a conciliation agreement. 23

      Similarly, Delaware law provides for the private enforcement of the State‟s

fair housing laws as follows:

      (1)a. An aggrieved person may commence a civil action in the county in
      which the discriminating housing practice is alleged to have occurred not
      later than 2 years after the occurrence or the termination of an alleged
      discriminatory housing practice, not later than 2 years after such practice has
      been discovered or reasonably should have been discovered by the aggrieved
      person, or not later than 2 years after the breach of a conciliation agreement
      entered into under this chapter, whichever occurs last, to obtain appropriate
      relief with respect to such discriminatory housing practice or breach.

         b. The computation of such 2-year period shall not include any time
      during which an administrative proceeding under this chapter was pending
      with respect to a complaint or charge under this chapter based upon such
      discriminatory housing practice. This subparagraph does not apply to
      actions arising from a breach of a conciliation agreement.24

      The parties do not dispute that on November 23, 2011, Mrs. Vester filed a

pro se housing discrimination complaint against “Henlopen Landing HOA, BOD

and Premier Property Management” with the Division, and that HLHA received

notice of the complaint.25 The fact that an administrative proceeding was initiated


23
   42 U.S.C. § 3613(a)
24
   6 Del. C. § 4613(a).
25
   Petitioner provided copies of Mrs. Vester‟s official administrative complaint, her
amended administrative complaint dated February 29, 2012, and Petitioner‟s own
motion to dismiss in the Division that was dated January 13, 2012. Compendium
to Petitioner‟s Response to Respondents‟ Motions to Amend their Answer,
                                     Page 11 of 23
with the Division and is still pending serves to toll the two-year statute of

limitations as to HLHA.26

      Although Petitioner admits that it received notice of the administrative

proceeding, it argues that PPPM did not. However, the parties do not dispute that

the only address listed on the complaint for “Henlopen Landing HOA, BOD and

Premier Property Management” is, in fact, the actual address of PPPM. 27 In

paragraph six of each printed complaint form, 28 it states that the agency “will

furnish a copy of the complaint to the person or organization against whom the

complaint is made.” Since HLHA received notice of the complaint, it seems

improbable that PPPM did not also receive notice. The name “Premier Property

Management” closely approximates PPPM‟s correct name and if there was any

doubt, Mrs. Vester‟s identification of PPPM‟s address should have eliminated it.29



Defenses and Counterclaims and to Join Additional Parties, Exs. A-C.
(“Petitioner‟s Compendium”).
26
   North Dakota Fair Housing Council, Inc. v. Allen, 319 F.Supp.2d 972, 979 (D.
ND 2004).
27
   Petitioner‟s Compendium, Ex. A at1-2
28
   There are two complaint forms in the record that were executed by Mrs. Vester
on November 23, 2011. One is the form used by the U.S. Department of Housing
and Urban Development Office of Fair Housing and Equal Opportunity (“HUD”)
and the other is used by the Delaware Human Relations Commission. They are
nearly identical in format and content. Id.
29
   In her original housing discrimination complaint, Mrs. Vester identified Jami
Ferro as a property manager whom Mrs. Vester believed had violated the law.
Petitioner‟s Compendium, Ex. A at 1-2. See also Verified Petition, Ex. C-1
(JaKara Vester‟s July 7, 2011 email seeking appeal process information and
                                    Page 12 of 23
This notice should have been sufficient to apprise PPPM of the pendency of the

administrative proceeding against it, whether or not PPPM chose to respond to it.

This notice has the effect of tolling the two-year statute of limitations as to PPPM

and, therefore, it would not be futile to add PPPM as a party to Respondents‟

counterclaims (Counts I and IV).

      In contrast, it is clear that the administrative complaint was not filed against

Dyer in either his individual capacity or as president of HLHA‟s Board of

Directors. Instead, Mrs. Vester named Paul Brager, the “acting President of HL

HOA BOD,” as the person she believed had violated the housing discrimination

laws.30 Respondents argue that they only learned of Dyer‟s involvement through

the discovery process that was part of the administrative proceeding,31 but that

does not excuse their delay in seeking to add Dyer as a party. Respondents could

have amended the administrative complaint to include allegations against Dyer,

just as they did in February 29, 2012, when Mrs. Vester added the three individual

members of the ARB as respondents.32                 Having failed to do so, however,

Respondents cannot avail themselves of the tolling provisions of the Federal and

State Fair Housing Acts since Dyer was not given notice of any administrative


reconsideration of her denied requests forwarded on August 5, 2011, to Jami Ferro
by Kate Bond (KRoach@prempropmgmt.com)) .
30
   Petitioner‟s Compendium, Ex. A.
31
   Transcript of Oral Argument on May 19, 2014, at pp. 6, 13-14.
32
   Petitioner‟s Compendium, Ex. C.
                                     Page 13 of 23
proceeding pending against him in his individual capacity or in his capacity as

President of HLHA‟s Board of Directors.33

      Respondents also argue that the repeated denials of their requests for a

reasonable accommodation regarding the location of their fence were part of a

continuing practice actionable against HLHA and Dyer in his individual capacity

under the continuing violation doctrine. Respondents bear the burden of proof

under a continuing violations doctrine.34 In order to avail themselves of this

doctrine, Respondents must demonstrate “„an organized scheme leading to and

including a present violation, such that it is the cumulative effect of the

discriminatory practice, rather than any discrete occurrence, that gives rise to the

cause of action.‟”35

      The limited record in this case indicates that Respondents were denied their

initial request for the extension of their fence on July 7, 2011.36 A renewed request

was made after the initiation of this litigation. i.e., after February 7, 2012. 37 As

alleged in Respondents‟ counterclaim, this request was made to HLHA‟s attorney

on February 17, 2012, and it made clear that the failure to approve the requested


33
   Sentell v. RPM Management Co., Inc., 653 F.Supp.2d 917, 922 (E.D.Ark. 2009).
34
    Ortega v. Housing Authority of the City of Brownsville, 572 F.Supp.2d 829, 835
(S.D.Tex. 2008). See also Petty v. Portofino Council of Coowners, Inc., 702
F.Supp.2d 721, 737 (S.D.Tex. 2010).
35
    Ortega, 572 F.Supp.2d at 835 (quoting Huckabay v. Moore, 142 F.2d 233, 239
   th
(5 Cir. 1998)).
36
   Petitioner‟s Answer to Respondents‟ Counterclaims, at ¶16. DI 18.
                                     Page 14 of 23
accommodation by the end of February would be considered a denial.38             No

response allegedly was made to this request or to another request for a fence

extension that was made on May 24, 2012.39

      Respondents have failed to demonstrate an organized scheme. Instead, they

have alleged three separate requests for an extension of the fence, each request

allegedly for an exception to the community‟s fence restrictions as a reasonable

accommodation for a disabled child. The first denial occurred on July 7, 2011, the

second denial constructively occurred on February 29, 2012, and it is unclear when

the third denial constructively occurred since there was no specific deadline given.

However, more than eight months had passed between the first denial and

Respondents‟ second request.      The first denial was sufficiently permanent to

trigger a reasonable person to protect his rights.40 The first denial was a discrete

event, actionable on its own. Therefore, Respondents cannot avail themselves of

the continuing violation doctrine here.

      The proposed reasonable accommodation counterclaim against Dyer arising

from the July 7, 2011 denial would not be time-barred if the amendments relate

back to the original pleading, which in this case occurred on February 7, 2012.



37
   Id. at ¶ 29.
38
   Respondents‟ Answer, Defenses and Counterclaims, at ¶ 29. DI 14.
39
   Id. at ¶ 30 & n.2.

                                     Page 15 of 23
Petitioner argues that the requirements of Rule 15(c)(3) have not been met because

real and material prejudice would result from the joinder of additional parties at

this time and because there was no mistake in Respondents‟ omission of Dyer as a

potential party.

        Rule 15(c) provides for the relation back of an amended party to the time of

the original complaint when:

        (3) The amendment changes the party of the naming of the party against
        whom a claim is asserted if … the party to be brought in by amendment
        (A) has received such notice of the institution of the action that the party will
        not be prejudiced in maintaining a defense on the merits, and
        (B) knew or should have know that, but for a mistake concerning the identity
        of the proper party, the action would have been brought against the party.
        According to Petitioner, the only prejudice in permitting an amendment

adding Dyer as a party is the lengthy delay and the fact that mandatory mediation

has already taken place.       I do not find these reasons sufficient to deny the

amendment. Dyer has been involved in this case at least since December 31, 2011,

when he signed the verification to this petition, and there has been no contention

that he would be prejudiced in maintaining a defense on the merits due to absent

witnesses, failing memories, or the like.

        On the other hand, it is also apparent from their housing discrimination

complaint that Respondents have known since at least the summer of 2011 that

Dyer was the developer of the community, and also believed that Dyer had veto


40
     Ortega, 572 F.Supp.2d at 836 (citing Berry v. Bd. of Supervisors of L.S.U., 715
                                       Page 16 of 23
power over the homeowners association‟s board of directors.41              Although

Respondents claim that they did not discover Dyer‟s alleged personal involvement

in the decisions to deny their repeated requests for a reasonable accommodation

until shortly after the initiation of the administrative proceedings, that is not the

type of mistake contemplated by Rule 15(c).42 Given Dyer‟s involvement in the

HLHA, it would have been reasonable for him to expect to be named as a party to

the administrative proceedings and to this petition, and that the omission of his

name was a voluntary decision by Respondents. Therefore, Respondents have not

shown the type of mistake that would allow for the relation back of an amended

party to the time of the original complaint for their reasonable accommodation

counterclaim arising out of the July 7, 2011 occurrence.

      Respondents also seek to add Dyer as an amended party to their retaliation

claims. The proposed retaliation claims relate to: (1) Dyer‟s alleged action in

“raising unfounded concerns about the driveway alteration” in response to the


F.2d 971, 981 (5th Cir. 1983)).
41
   Petitioner‟s Compendium, Ex. A at 4 (“8/3/11: Spoke to Gail at Pret Dyers office
about my pass/privileges being suspended (community is still controlled by
developer and can veto HOABOD). She told me to email her the details and she
would make Mr. Dyers aware and „… it will be taken care of…‟ (several
emails/calls have been made to date 11/3/11 with no response).”
42
   Johnson v. Paul’s Plastering, Inc., 1999 WL 744427, at *3 (Del. Super. July 30,
1999) (“The Rule does not protect a Plaintiff who is fully aware of a potential
Defendant‟s identity even if the Plaintiff is not fully aware of such Defendant‟s
responsibility for the harm alleged.”) (citing Rendall-Speranza v. Nassim, 107 F.3d
913, 918 (D.C.Cir. 1966)).
                                     Page 17 of 23
Vesters‟ initial request for a reasonable accommodation during the July 1, 2011

ARB meeting when she allegedly invoked her rights under the fair housing laws;

and (2) Dyer‟s commencement of this litigation after the Vesters filed their

housing discrimination complaint with the Division. Petitioner again argues that

these claims are time-barred because the last event, the filing of the instant case,

occurred on February 7, 2012, more than two years before Respondents‟ motions

were filed.

         Respondents contend that the mere filing of this petition itself was a

retaliatory act and, since this litigation is still pending, the discriminatory housing

practice or breach is still occurring and has not yet terminated so the federal statute

of limitations has not yet begun to run.43 Further, they point out that, unlike federal

law, under the State‟s Fair Housing Act, 44 the limitations period ends no later than


43
     Under 42 U.S.C. § 3613(a)(1)(A):
        An aggrieved person may commence a civil action in an appropriate United
        States district court or State court not later than 2 years after the occurrence
        or the termination of an alleged discriminatory housing practice, or the
        breach of a conciliation agreement entered into under this subchapter,
        whichever occurs last, to obtain appropriate relief with respect to such
        discriminatory housing practice or breach.
44
     6 Del. C. § 4613(a)(1)a provides:
        An aggrieved person may commence a civil action in the county in which
        the discriminating housing practice is alleged to have occurred not later than
        2 years after the occurrence or the termination of an alleged discriminatory
        housing practice, not later than 2 years after such practice has been
        discovered or reasonably should have been discovered by the aggrieved
        person, or not later than 2 years after the breach of a conciliation agreement
                                        Page 18 of 23
2 years after the discriminatory housing practice is discovered or reasonably should

have been discovered. Since Respondents were not served with a copy of the

verified petition until February 27, 2012, they could not have discovered this

alleged discriminatory practice until February 27th.

      I find Respondents‟ arguments – both their primary argument that

limitations period has not begun because the termination of the alleged

discriminatory housing practice has not yet occurred and their secondary argument

regarding the date of discovery of the alleged housing discriminatory practice -- to

be persuasive.

      In its verified petition, HLHA seeks to enforce three recorded restrictions

regarding the altered driveway, plantings, and garbage receptacles on the

Respondents‟ property. As part of the relief requested, HLHA wants an order

compelling Respondents to restore their property to the status quo ante. As shown

in the photographs attached to the petition, the plantings are small evergreen shrubs

or trees that can easily be removed,45 and the garbage receptacles can be moved

into the garage without difficulty because the two large ones appear to be wheeled

receptacles and the other two receptacles are relatively small.46 The driveway


       entered into under this chapter, which occurs last, to obtain appropriate relief
       with respect to such discriminatory housing practice or breach.
45
   In paragraph 23 of Respondents‟ Answer, Defenses and Counterclaims,
Respondents allege that the trees have been removed. DI 14.
46
   Verified Petition, Exs. D & E. DI 1.
                                      Page 19 of 23
apparently was altered by cutting out 300 square feet of grass in order to widen it,

crushed stone was added and leveled, and then the entire driveway repaved with

hot mix and asphalt for a cost of $2500.00.47 Clearly, the cost of restoring the

driveway to the status quo ante would be much greater than the cost of digging up

the plantings and removing the garbage receptacles from view, so the driveway

alteration appears to be the most significant violation alleged in the petition.

      In their original pleadings, Respondents allege a series of communications

and events involving the ARB, PPPM, and HLHA regarding the driveway

alteration that began on July 1, 2011, at the conclusion of the ARB meeting where

Mrs. Vester allegedly invoked the Federal Fair Housing Act in support of her

request for an extension of the location of the fence: (a) on July 1, 2011 – Mrs.

Vester received a request for additional information about the requested driveway

alteration;48 (b) on July 7, 2011, Mrs. Vester learned that the decision on the

driveway alteration was postponed until ARB received plans from a contractor

regarding the slope of the driveway;49 (c) on July 14, 2011, Mrs. Vester received

an email from PPPM indicating approval of all work;50 (d) on August 3, 2011,

work on Respondents‟ driveway was interrupted by PPPM, and after Mrs. Vester

provided copies of the contractor‟s proposal and PPPM‟s email, PPPM authorized


47
   Verified Petition, Ex. B at 7. DI 1.
48
   Respondents‟ Answer, Defenses and Counterclaims at ¶ 15. DI 14.
49
   Id. at ¶ 16.
                                      Page 20 of 23
work to be completed;51 (e) on August 6, 2011, Mrs. Vester discovered her pool

keycard had been deactivated and later learned this was because she allegedly had

not had approval for the driveway alteration;52 and (f) on September 21, 2011,

Respondents received a letter from HLHA‟s attorney informing them that there had

been no approval for the driveway alteration and instructing them to commission a

professional engineer licensed in Delaware to provide an opinion regarding the

stormwater drainage from the altered driveway within 10 days.53          These original

allegations, with the additional proposed amendments concerning the alleged

involvement of Dyer and PPPM in this matter, conceivably show a continuum of

events leading up to the filing of HLHA‟s enforcement petition on February 7,
        54
2012.        Therefore, I do not find these proposed retaliation claims to be time-

barred.

        Finally, Petitioner argues that it would be futile to join the additional parties

because the proposed amended pleadings make only conclusory allegations that

fail to indicate why the actions of Dyer or PPPM would create any direct liability


50
   Id. at ¶ 19.
51
   Id. at ¶ 20.
52
   Id. at ¶ 21.
53
   Id. at ¶ 25.
54
    On August 28, 2012, a copy of a Drainage Impact Study on the stormwater
runoff pattern of Respondents‟ driveway authored by a professional engineer
licensed in Delaware was provided to HLHA, showing no adverse impact on
adjacent properties or Henlopen Landing‟s stormwater management facilities. Id.
at ¶ 25 n.1.
                                       Page 21 of 23
for those parties in their individual capacities. Petitioner also raises a veil-piercing

defense, arguing that the proposed amended pleadings fail to allege fraud with any

specificity in order to attack Dyer directly.

      Under the Federal Fair Housing Act, claims may be brought against

individual board members of non-profit corporations who are allegedly involved in

unlawful housing discrimination, and also against property managers, regardless of

whether the alleged unlawful actions were committed within the course and scope

of employment.55 Reviewing the proposed amended pleadings, I find it reasonably

conceivable from the allegations in Respondents‟ counterclaims that Dyer and

PPPM may have been or currently are involved in discriminatory housing practices

or breaches of the Federal and State Fair Housing Laws.

Conclusion

      For the reasons stated above, I recommend that the Court grant

Respondents‟ Motion to Amend Their Answer, Defenses and Counterclaims in

order to join Dyer and PPPM as additional parties except to the extent that

Respondents seek to hold Dyer directly liable for the July 7, 2011 denial of their

alleged request for an extension of the location of a fence as a reasonable

accommodation for their disabled child, which is time-barred.



55
  See, e.g., Fielder v. Sterling Park Homeowners Assoc., 914 F.Supp.2d 1222,
1227-1230 (W.D.Wash. 2012); Housing Opportunities Project for Excellence, Inc.
                                       Page 22 of 23
      HLHA has taken several exception to my draft report recommending that the

Court allow Respondents to amend their answer, defenses, and counterclaims and

to join the president of HLHA‟s Board of directors and the property management

company as additional parties to their counterclaims, except to the extent

Respondents seek to hold the president directly liable for the July 7, 2011 denial of

Respondents‟ request to extend the location for their fence allegedly as a

reasonable accommodation for their son‟s disabilities.         I have reviewed the

parties‟ briefs in support of and in opposition to the HLHA‟s exceptions, and see

no reason to modify my draft report. Therefore, I am adopting my draft report as

my final report. The parties are referred to Rule 144 for the process of taking

exception to a Master‟s Final Report.



                                               Respectfully,

                                               /s/ Kim E. Ayvazian

                                               Kim E. Ayvazian
                                               Master in Chancery

KEA/kekz
cc: Michael R. Smith, Esquire
    Neilson C. Himelein, Esquire
    Michael Ryan Smith, Esquire



v. Key Colony No. 4 Condominium Assoc., Inc., 510 F.Supp.2d 1003, 1013-1014
(S.D.Fla. 2007).
                                     Page 23 of 23
