                               COURT OF CHANCERY
                                     OF THE
                               STATE OF DELAWARE
  PATRICIA W. GRIFFIN                                                  CHANCERY COURTHOUSE
      MASTER IN CHANCERY                                                    34 The Circle
                                                                    GEORGETOWN, DELAWARE 19947




                           Final Report:      June 29, 2018
                           Date Submitted:    April 5, 2018

Robert J. Valihura, Jr., Esquire
The Law Office of Robert J. Valihura, Jr.
3704 Kennett Pike Suite 200
Greenville, SC 19807

R. Karl Hill, Esquire
Seitz VanOgtrop & Green, P.A.
222 Delaware Avenue Suite 1500
PO Bo 68
Wilmington, DE 19899

RE:      Brandywood Civic Association v. Gary Freas
         Civil Action No. 2017-0727-PWG

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
Brandywood Civic Association v. Gary Freas
Civil Action No. 2017-0727-PWG
June 29, 2018

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


1
 The Property is subject to Brandywood’s Declaration of Restrictions, which were
dated December 11, 1980. Docket Item (“D.I.”) 1, Ex. B.
2
    D.I. 1, Ex. C.

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Brandywood Civic Association v. Gary Freas
Civil Action No. 2017-0727-PWG
June 29, 2018

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

3
    Id.
4
  The BCA representative “conveyed [Freas’s] plans, in detail, to the Directors of
[BCA].” D.I. 1, ¶ 7.
5
    D.I. 1, Ex. C.
6
    Id.

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Brandywood Civic Association v. Gary Freas
Civil Action No. 2017-0727-PWG
June 29, 2018

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




7
    D.I. 1, ¶ 11.
8
    D.I. 7.

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Brandywood Civic Association v. Gary Freas
Civil Action No. 2017-0727-PWG
June 29, 2018

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


9
  BCA filed a motion to stay discovery on February 16, 2018 to prevent undue burden
until resolution of a potentially dispositive motion. That motion, unopposed by Freas,
was granted by the Court on March 18, 2018 pending resolution of the motion for
judgment on the pleadings.
10
  Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624 A.2d
1199, 1205 (Del. 1993).
11
  Id.; see also Chicago Bridge & Iron Co. N.V. v. Westinghouse Elec. Co. LLC, 166
A.3d 912, 925 (Del. 2017), as revised (June 28, 2017).
12
   Chicago Bridge & Iron Co. N.V., 166 A.3d at 925; Raymond L. Hammond
Irrevocable Tr. Agreement, 2016 WL 359088, at *3 (Del. Ch. Jan. 28, 2016) (“A
motion for judgment on the pleadings is the appropriate procedural setting to resolve
an action to enforce an unambiguous contract.”); Strougo v. Hollander, 111 A.3d 590,
594-95 (Del. Ch. 2015).

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Brandywood Civic Association v. Gary Freas
Civil Action No. 2017-0727-PWG
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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


13
   In addition, BCA argues that the violation of the Deed Restriction, in itself, is
“adequate grounds for determining irreparable harm” sufficient to grant injunctive
relief, and Freas will suffer no harm because he was not entitled to erect the fence.
D.I. 13. In response, Freas asserts that BCA has not established any harm, since it
permitted the erection of other “portions” of the fence and there is no evidence that
Freas won’t remove the disputed fence if ordered to do so. D.I. 18.
14
     D.I. 18.
15
  Benner v. Council of Narrows Ass'n of Owners, 2014 WL 7269740, at *1 (Del. Ch.
Dec. 22, 2014), adopted, (Del. Ch. Mar. 16, 2015).

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Brandywood Civic Association v. Gary Freas
Civil Action No. 2017-0727-PWG
June 29, 2018

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 been
         submitted to and approved in writing by [BCA].” 19




16
  Benner, 2014 WL 7269740, at *7; see also Tusi v. Mruz, 2002 WL 31499312, at *3
(Del. Ch. Oct. 31, 2002) (“because [architectural review restrictions] restrict the ‘free
use of property,’ restrictive covenants must be strictly construed”).
17
   Benner, 2014 WL 7269740, at *7; Seabreak Homeowners Ass'n, Inc. v. Gresser,
517 A.2d 263, 269 (Del. Ch. 1986), aff'd, 538 A.2d 1113 (Del. 1988) (“where the
language used in the restrictive covenant empowering the committee is overly vague,
imprecise, or so unclear as not to lend itself to evenhanded application, then the grant
of authority is normally not enforceable”).
18
  Dolan v. Villages of Clearwater Homeowner's Ass'n, Inc., 2005 WL 2810724, at *4
(Del. Ch. Oct. 21, 2005).
19
     D.I. 1, Ex. B, § 3.

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Brandywood Civic Association v. Gary Freas
Civil Action No. 2017-0727-PWG
June 29, 2018

The Deed Restriction clearly requires that plans be submitted to BCA prior to

erecting structures or fences.     It is not clear from the language in the Deed

Restrictions, however, whether the “in writing” requirement only applies to how

BCA disseminates approvals or if it also pertains to the submission of plans by

homeowners to BCA.          If language is ambiguous, a decision by motion for

judgment on the pleadings is not appropriate.

         It is undisputed that Freas failed to submit written plans to BCA for review.

However, BCA “undertook the review process of Owner’s intent based upon

information verbally conveyed by Owner to the [BCA].”20 By making decisions

on Freas’s modifications based upon orally submitted plans, BCA acted to enforce

the Deed Restrictions and apply the approval standards included in the Deed

Restrictions. BCA’s action opened up the issues of whether the Deed Restrictions’

approval standards are enforceable and whether BCA’s disapproval of the disputed

fence was reasonable. If the Deed Restrictions are “vague, imprecise, or unclear,

[they] are normally not enforceable.”21 In reviewing requests based upon the Deed

Restrictions, BCA must show that it applied the standards reasonably and not

arbitrarily.22


20
     D.I. 1, ¶ 7.
21
     Benner, 2014 WL 7269740, at *7.
22
     See Dolan, 2005 WL 2810724, at *4.

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Brandywood Civic Association v. Gary Freas
Civil Action No. 2017-0727-PWG
June 29, 2018

         First, the approval standards in the Deed Restrictions provide that the BCA

has the

         right to refuse to approve any such plans . . . which are not suitable or
         desirable, in its opinion, for aesthetic or other reasons; and in so
         passing upon such plans . . ., it shall have the right to take into
         consideration the suitability of the proposed . . . structure and of the
         materials of which it is to be built, to the site upon which it is
         proposed to erect the same, the harmony thereof with the surroundings
         and the effect of the . . . structure as planned, on the outlook from the
         adjacent or neighboring property.23

Courts have held that standards considering the “suitability of the structure and

materials to be used and the extent to which the structure will harmonize with the

surroundings,” if objectively applied, may be valid.24 However, standards that

allow for rejection “solely on the basis of aesthetic reasons” may be found to be

invalid.25 The Deed Restrictions’ language includes aesthetic reasons as one

criteria for disapproving a homeowners’ request and the BCA Letter does not

contain any reasons based upon specific criteria under section 3 of the Deed

Restrictions supporting the conclusions reached by BCA. Consequently, there are

23
     D.I. 1, Ex. B, § 3.
24
   Lawhon v. Winding Ridge Homeowners Ass'n, Inc., 2008 WL 5459246, at *5 (Del.
Ch. Dec. 31, 2008) (“restrictions based on abstract aesthetic desirability are
impermissible” but “decisions may be influenced by aesthetic considerations while
still subject to objective standards”); Dolan, 2005 WL 1252351, at *6 (actions by an
architectural review board “based on purely objective criteria are permissible, actions
based on purely subjective criteria (aesthetics) are not”); Welshire Civic Ass'n, Inc. v.
Stiles, 1993 WL 488244, at *3 (Del. Ch. Nov. 19, 1993).
25
     Welshire Civic Ass'n, Inc., 1993 WL 488244, at *3.
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Brandywood Civic Association v. Gary Freas
Civil Action No. 2017-0727-PWG
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material issues of fact that need to be addressed regarding the Deed Restrictions’

enforceability and whether BCA’s actions were based upon objective criteria.

       Further, it must also be found that BCA’s disapproval was reasonably

withheld. Since neither the Complaint nor the BCA Letter alleges any specific

reasons for BCA’s disapproval (only stating that the denial occurred “pursuant to

section 3 of the Deed Restrictions”), there remains a material issue of fact

concerning the reasonableness of BCA’s application of the standards.

III.   Conclusion

       For the reasons set forth above, I recommend the Court deny BCA’s motion

for judgment on the pleadings. This is a final report and exceptions may be taken

pursuant to Court of Chancery Rule 144.


                                        Sincerely,

                                        /s/ Patricia W. Griffin
                                        Master in Chancery




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