Dale Yeilding v. Council of Assn. of Unit Owners of Pelican Cove Condominium

• Court: Court of Chancery of Delaware
• Decided: April 20, 2022
• Docket: CA No. 2019-0826-SG
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

DALE YEILDING and SANDRA ) YEILDING, husband and wife, ) ) Plaintiffs, ) ) v. ) C.A. No.: 2019-0826-SG ) COUNCIL OF ASSOCIATION OF ) UNIT OWNERS OF PELICAN ) COVE CONDOMINIUM, ) and ) CATHERINE ROBINSON, ) ) Defendants. )

MEMORANDUM OPINION

Date Submitted: January 21, 2022 Date Decided: April 20, 2022

Dean A. Campbell, of LAW OFFICE OF DEAN A. CAMPBELL, P.A., Milton, Delaware, Attorney for Plaintiffs Dale Yeilding and Sandra Yeilding.

Richard E. Berl, Jr., of HUDSON, JONES, JAYWORK & FISHER, LLC, Lewes, Delaware, Attorney for Defendants Council of Association of Unit Owners of Pelican Cove Condominium and Catherine Robinson.

GLASSCOCK, Vice Chancellor This Court developed as a tool with which to administer equity—fairness—in

cases where courts of law were unable to act. 1 To that end, it may employ injunctive

relief, but only where justice so requires. The equities in this case, I find after trial,

are insufficient to such relief.

The Plaintiffs here are unit owners in a condominium in Dewey Beach, a

former bayfront hotel with a marina known as Pelican Cove. Dale and Sandra

Yeilding, the Plaintiffs, 2 are a married couple who rent out their unit in the

condominium as a vacation unit, and make personal use of it, as well. The Yeildings

previously were defendants in a matter brought by the unit holder association (the

“HOA”), which successfully advocated that the Yeildings were bound to a maximum

number of rental tenants—six—as provided in the Pelican Cove Condominium

Declaration (the “Declaration”) despite having the largest unit in the condominium.3

After that suit was resolved in favor of the Pelican Cove HOA, the Plaintiffs brought

this action against the HOA and one other unit holder, Catherine Robinson,

individually (the HOA and Robinson together, the “Defendants”). The Plaintiffs

posit a flurry of causes, all generally based on the allegation that various actions of

1 See, e.g., William T. Quillen & Michael Hanrahan, A Short History of the Delaware Court of Chancery, 18 Del. J. Corp. L. 819 (1993). 2 I alternate between references to “the Plaintiffs” and “Yeilding” in this Memorandum Opinion as, although Sandra Yeilding is named as a plaintiff, only Dale Yeilding testified at trial, and the Plaintiffs’ briefing also refers to Mr. Yeilding in the singular in many instances. 3 Council of Ass’n of Unit Owners of Pelican Cove Condo. v. Yeilding, 2020 WL 2465725 (Del. Ch. May 13, 2020).

1 the HOA were ultra vires and incompatible with the Declaration, or with positive

law. The action was expedited and the Plaintiffs sought relief via a temporary

restraining order; nonetheless, the pace of the litigation has been desultory.

Eventually, a trial seeking various applications of injunctive relief was held on

November 16, 2021, and post-trial briefing followed. This is my post-trial

Memorandum Opinion. I find that equity was not sufficiently invoked so that any

injunctive relief is appropriate. I also find that the Plaintiffs’ allegations wander the

borderlands that separate merely weak claims from the country of the frivolous. My

reasoning follows.

I. BACKGROUND 4

At bottom, this case revolves around the Plaintiffs’ disagreement with various

recent decisions of the HOA. As identified above, the Plaintiffs, the Yeildings, are

owners of Unit #7 at Pelican Cove. They bring this action against the HOA as well

as individually against the owner of Unit #2, Catherine Robinson.

The Complaint outlines four disparate bases for receipt of injunctive relief. In

brief, those bases are as follows: first, Unit #2 has been altered impermissibly under

the Plaintiffs’ reading of the Declaration; second, various unit owners have failed to

4 The facts in this section are drawn primarily from the parties’ pre-trial stipulation, joint exhibits or testimony given at trial, though it has occasionally been necessary to reference other papers such as the complaint in order to properly outline the lawsuit. Where the facts are drawn from exhibits jointly submitted at trial, they are referred to according to the numbers provided on the parties’ joint exhibit list and with page numbers derived from the stamp on each JX page (“JX __, at ___”).

2 comply at all times with the Declaration and a second governing document, the

Pelican Cove Code of Regulations (the “Code of Regulations”), which (per the

Plaintiffs) prohibit obstruction of the decks and/or balconies at Pelican Cove; third,

the depth of the marina adjoining the property is insufficient under the latest

amendment to the Declaration; and fourth, the HOA has drafted common area rules

purporting to regulate renters’ guests, which, per the Plaintiffs, violate the

Declaration. 5 I consider the governing documents in more detail below, along with

a brief background of the facts alleged with respect to each particular count of the

second amended complaint (the “Complaint”).6

1. The Pertinent Documents

The Declaration “create[s] a plan of condominium ownership” in the subject

property, and was originally recorded in 1978.7 Since that time, the Declaration has

undergone three amendments, with the latest occurring in 2008. 8 The amendment

process requires a two-thirds vote of the membership.9 Property owners at Pelican

Cove are entitled to a voting percentage equal to the proportion of their unit’s

5 Fifth and sixth causes of action (regarding attorneys’ fees) were originally pled. Second Am. Compl. for Injunctive Relief ¶¶ 73–83, Dkt. No. 25 [hereinafter “Compl.”]. Count six, relating to special assessments, was withdrawn without prejudice at trial. See Tr. of 11.16.21 Trial, 87:21– 23, Dkt. No. 40 [hereinafter “Trial Tr.”]; see also Compl. ¶¶ 76–83. Count five, relating to “shifting of attorneys fees,” has not been prosecuted and will not be considered here. See Compl. ¶¶ 73–75. 6 See Compl. 7 JX 1, at Yeilding/Myers000352. 8 JX 2, JX 3, JX 4. 9 JX 1, at Yeilding/Myers000364.

3 footprint to that of the entire property. 10 On that basis, the Plaintiffs are entitled to

a vote, individually, greater than one-third; thirty-four percent.11 I refer to the

Declaration and/or any of its amendments throughout this Memorandum Opinion as

“the Declaration.”

The Declaration, in accordance with Delaware statute, includes a “declaration

plan” “show[ing]” the units and common elements on the property (the “Declaration

Plan”).12 The Declaration Plan is recorded.13

Pelican Cove unit owners adopted a Code of Regulations in 1978. 14 A recent

HOA meeting in 2020 purported to amend the Code of Regulations, though the

Plaintiffs dispute whether this amendment was valid. 15 A recorded copy of the

amendment was provided as joint exhibit 23. 16 The Code of Regulations, by its

terms, can be amended by “vote of majority of the owners at any regular or special

meeting.”17 I refer to the Code of Regulations and any of its amendments throughout

this Memorandum Opinion as the “Code of Regulations.”

10 See Pre-Trial Stipulation and Order, II ¶ 4, Dkt. No. 36 [hereinafter “Stip.”]; see also JX 1, at Yeilding/Myers000369. 11 See Stip. at II ¶ 2. 12 See 25 Del. C. § 2219(4); see also JX 6. 13 See JX 6. 14 JX 5. 15 See JX 21; Stip. at I ¶ 3 (“The modification placed the Code of Regulations in conflict with the Declaration, where when such conflict exists, the Declaration governs.”). 16 JX 23. 17 JX 5, at Yeilding/Myers000382.

4 Where any conflict exists between the Declaration and the Code of

Regulations, the conflict shall, “if not otherwise reconciliable [sic], be resolved in

favor of the Declaration.”18

The Pelican Cove Beach House Rental Rules (the “Rental Rules”) are a third

pertinent document. 19 These rules do not appear to be formally recorded and are

aimed at regulating the behavior of rental guests.20 The document lays out eight

Rental Rules, which appear to be primarily focused on regulating behavior affecting

common areas or common elements of the condominium, such as parking and

plumbing. 21 A somewhat abbreviated version of these rules is posted at the entrance

to the common areas of Pelican Cove. 22

The Plaintiffs particularly take issue with rule number three (“Rule 3”), which

states: “No parties or large social gatherings. People other than those in the rental

party are not allowed on the property. No visitors are allowed.” 23

18 JX 1, at Yeilding/Myers000365. 19 JX 22. 20 Id. 21 Id. 22 Trial Tr. 45:12–22. 23 See JX 22; see also Trial Tr. 45:8–47:15.

5 The Plaintiffs allege that these rules were passed in violation of the

Declaration. 24 They also allege that the Rental Rules violate the Delaware Unit

Property Act (the “Unit Property Act”). 25

2. The Allegations

a. Unit Alterations

In 2019, Robinson, the owner of Unit #2, sought to make certain renovations

to her unit.26

The Declaration Plan shows the layout of Unit #2 (and all other units) in a

considerable amount of detail, including the dimensions of the “LR” (which I

assume means living room), the “BR” (which I assume means bedroom), and

identifying kitchen and bathroom elements via symbols. 27 The Declaration Plan

only shows one bedroom in connection with Unit #2.28

The Declaration includes a description of the Pelican Cove building, noting:

“Unit Number 2 is located on the first floor and consists of the following: a kitchen

and dining area, a living room, a bedroom, a bathroom, a closet containing a laundry

and three other closets.”29 The Plaintiffs assert that this subsection of the

24 Stip. at I ¶ 4. 25 Pls. Opening Br. for Post-Trial Closing Args. 11, Dkt. No. 41 [hereinafter “Post-Tr. OB”]; see also, e.g., 25 Del. C. § 2205. 26 Trial Tr. 111:11–112:9; see also Compl. ¶ 19 (identifying the pertinent timeframe). 27 See JX 6. 28 Id. 29 JX 4, at Yeilding/Myers000410.

6 Declaration, entitled “Description of Building,” is a “required and mandated section

of the Declaration pursuant to” Delaware statute.30 The referenced statutory

provision provides that a unit property’s declaration must contain “[a] description of

the land and building.” 31

The Declaration includes a broad definition of common elements, including,

but not limited to,

[t]he foundation, the pilings, all supporting posts and beams, and the crossbeams located under the building. The electrical wiring system, including transformers and all other equipment used to distribute the electricity, but not including any fixture inside or on the exterior of any wall within any of the individual units . . . . The outside exterior walls of the building except for the windowglass and screens. The plumbing facilities installed for use outside the various individual units . . . . [and t]he party walls located between the various units.32

Per Robinson’s testimony at trial, which I found to be credible, she hired an

architectural firm and a local contractor to accomplish interior-only changes to her

unit.33 Robinson testified that she “at one point had thought about” changing

windows, which would have constituted an exterior renovation; as such, she brought

her renovation plans to the HOA for approval.34 Ultimately, however, Robinson

testified that her changes did not affect the building’s foundation; that each unit is

30 See JX 1, at Yeilding/Myers000356; see also Compl. ¶ 14. 31 See 25 Del. C. § 2219(2). 32 JX 1, at Yeilding/Myers000357. 33 Trial Tr. 112:24–114:1; 115:8–20. 34 Id. at 115:11–20.

7 separately wired and each unit is separately metered with respect to water and

sewage, and neither of these common elements were affected; that no exterior walls

or windows were altered; that no party walls were altered; that no walls inside the

unit were moved; and that she “only added” a wall.35

Robinson testified that once her daughter arrived, she and her partner “wanted

to have an additional place where we could have another bed.” 36 But, she noted, the

original plans changed. 37 On cross-examination, Robinson clarified that, despite her

desire to have room for an additional bed, post-renovations Unit #2 contains “an

enlarged bedroom that has an adjoining office, but . . . they’re not separate rooms.”38

She also noted that the bathroom was moved in connection with the remodel, and

responded affirmatively when asked whether “the kitchen was relocated to some

degree,” including the kitchen sink.39

As noted, Robinson had taken her renovation plans to the HOA for approval.40

The only evidence I have on the pertinent deliberations is Dale Yeilding’s trial

testimony, wherein he noted that the HOA allowed Robinson to proceed over his

35 Id. at 116:7–118:14. 36 Id. at 112:7–9. 37 Id. at 112:21–113:10. 38 Id. at 123:24–124:4. 39 See id. at 124:13–125:4. 40 See id. at 115:14–17.

8 objections.41 Exactly what the HOA considered itself to have approved, or

permitted, is therefore not known to me.

Of note, Yeilding testified that failures in prior changes or repairs at Pelican

Cove had previously required him to pay 34% of the ultimate fix (based on the size

of his unit in proportion to the whole).42 He cited this as a reason that he objected

to the renovations in Unit #2. 43

b. Balcony Obstructions

The Plaintiffs’ second concern stems from what they view as inappropriate

use of a common element of Pelican Cove: the decks or balconies. 44 Section 14 of

the Declaration discusses restrictions on use of common elements, clarifying that

[u]se of all common elements shall in general be subject to such reasonable rules and regulations as may be from time to time adopted and amended . . . . Without the prior written authorization of the council, no common element shall be obstructed . . . . Furthermore, no towels, blankets, clothing, or other material of any kind shall be hung or draped or allowed to remain at or on any of the balconies, railings, porches, patios, docks, or catwalks of the property. 45

41 See id. at 22:3–18. Yeilding declined to state that the HOA “approved” the renovation, because amendments to the Declaration require a two-thirds vote, and his abstention counts for 34% of the vote. See id.; see also JX 1, at Yeilding/Myers000369. 42 Trial Tr. 26:23–27:10. 43 Id. at 26:6–27:19. 44 See JX 1, at Yeilding/Myers000358 (identifying the “outside steps and decking and any handrail leading to the entrance ways” as a common element). 45 See id. at Yeilding/Myers000360–61.

9 The Code of Regulations also addresses use of common elements, specifying

that a unit owner “shall not place . . . in any common element area any furniture,

packages, or objects of any kind unless prior written consent from the Council is

provided to the unit owner. Such areas shall be used for no other purpose than for

normal transit unless otherwise approved by the Council.”46

The President of the HOA signed a writing dated May 2020 and addressed to

“Pelican Cove Owners” that permits the owners of units #4, #5, and #6 to locate

chairs, tables, and other small objects on the balcony “in a manner that does not

unreasonably restrict” passage.47

The Plaintiffs alleged in their Complaint that certain furniture and personal

articles placed upon the deck are in violation of “Fire Safety Codes.”48 They also

point to a purported conflict between the Declaration and the Code of Regulations,49

questioning whether the “prior written” authorization or consent of the HOA

requires a majority vote or a two-thirds vote. 50

46 JX 23. 47 JX 21. 48 Compl. ¶ 59. 49 Post-Tr. OB 6. 50 Id. at 7.

10 The Plaintiffs submitted joint exhibit 14, photographs of the deck in question,

including the challenged deck chairs and the space remaining for ingress and

egress.51 The third photograph also shows the deck chairs in use.52

c. The Pelican Cove Marina

Pelican Cove is situated next to a marina and provides its unit owners with

access to the marina.53 The Declaration identifies that the pier “has 7 boat slips that

make up the marina . . . . Each unit is entitled to one navigable boat slip,” and

specifies that “[t]he right of each unit to a navigable boat slip is guaranteed by this

agreement.”54

51 JX 14. 52 That is, a photograph of residents sitting outside their units, presumably enjoying the bay views. Id. The Plaintiffs submitted a “Supplement to Closing Argument” shortly following their opening post-trial brief. Pls. Suppl. to Closing Arg., Dkt. No. 42. The supplement identifies the town of Dewey Beach (where Pelican Cove is located) as having adopted the “International Building Code” to regulate condominiums. Id. at 1. The post-trial reply brief specifies that the town of Dewey Beach adopted the International Building Code (the Dewey Beach Code also adopts future editions as promulgated) in its code of ordinances. Dewey Beach, Del., Code of Ordinances, ch. 71, § 1(A)(1) (2005); see also Pl.’s Reply Br. 12, Dkt. No. 48 [hereinafter “Post-Tr. RB”]. The supplement cites in particular a subsection on “Exit Passageways,” identifying a minimum width of 36 inches for an exit passageway in certain circumstances and noting that “[t]he minimum width or required capacity of exit passageways shall be unobstructed.” Id. at 2; see 2021 International Building Code, ch. 10, § 1024.2 (2021). Despite this, the Plaintiffs have not submitted any evidence that the exit passageways (the decks) are obstructed to a width of less than 36 inches. The only evidence that could demonstrate the width is JX 14, which I find insufficient to demonstrate clearance on the decks, as it does not attempt to show a violation of the 36-inch requirement. See JX 14. As the Defendants well note in their post-trial answering brief, the “Dewey Beach Code” issue was not included in the pre-trial stipulation, nor in the Complaint, and was only briefly raised without citation in Yeilding’s testimony at trial. See Defs.’ Post-Trial Answering Br. 24–25, Dkt. No. 43 [hereinafter “Post-Tr. AB”]; Stip.; Compl.; Trial Tr. 64:4–65:6. For these reasons, the supplement does not figure prominently in my treatment of the balcony obstructions. 53 See, e.g., JX 4, at Yeilding/Myers000411. 54 Id. (emphasis added).

11 In order to provide the marina and navigable boat slips to its unit owners, the

HOA entered into a subaqueous land lease with the Delaware Department of Natural

Resources (“DNREC”) in 2000.55 That lease, which had a twenty-year term, has

since expired.56

The Plaintiffs’ complaints about the marina are twofold in nature. First, they

argue that the lease renewal process, which is pending, was undertaken improperly.57

Second, they argue that the boat slips available are not “navigable” as defined in the

Declaration. 58

The Plaintiffs assert that the HOA Treasurer submitted an incomplete

subaqueous lease application to DNREC without obtaining a “required two thirds

(2/3) vote to renew the lease.”59 The application is purportedly incomplete because

no depth survey was submitted and because the marina, per the Plaintiffs, does not

comply with the depth identified in the governing documents. 60

For a slip to be “navigable” as defined in the Declaration, it must contain “18

inches of water at mean low tide.”61 In the event a slip becomes non-navigable, the

Declaration provides that the pertinent unit can notify the HOA in writing, and that

55 Stip. at II ¶ 5. 56 See id. at II ¶¶ 5–6. 57 See Post-Tr. OB 8; see also Stip. at I ¶ 2a. 58 See Post-Tr. OB 8, Stip. at I ¶ 2b. 59 Stip. at I ¶ 2a. 60 Compl. ¶ 47. 61 JX 4, at Yeilding/Myers000411.

12 the HOA will then verify the condition of the slip and (presumably) take corrective

action. 62

The slips were not fully assigned when Yeilding first purchased Unit #7, and

at that time another individual had been using slip 7. 63 As such, Yeilding agreed to

use slip 5.64 After this verbal agreement, Yeilding inquired about installing a boat

lift on slip 5—a right not guaranteed in the pertinent documents 65—but was

purportedly unable to do so. 66 He has also used slips 1, 2, and 3 from time to time.67

Yeilding first notified the HOA on November 28, 2017 68 that he believed slip

1 was no longer navigable per the Declaration. 69 Per Yeilding’s testimony, he

measured the water depth in slip 1 himself and became concerned that the marina

was insufficiently deep. 70 Once he informed the HOA of the non-navigability of

slip 1, the HOA formally assigned him slip 5, and assigned slips 1, 2, and 3 to unit

62 Id. 63 See, e.g., Trial Tr. 94:20–95:3 (the HOA President testifying as to the slips that were taken at the time Yeilding purchased Unit #7). 64 Id. at 34:3–8. 65 JX 4, Yeilding/Myers000411 (noting that a unit may make modifications to a slip, such as adding a boat lift, upon written approval of the Condominium). 66 See Trial Tr. 33:10–35:24. 67 Id. at 35:18–24. 68 The joint exhibit, JX 9, is dated as of 2017. JX 9. I do note that the Plaintiffs’ post-trial reply briefing indicates the letter was sent in 2019. See Post-Tr. RB 4. I have considered the exhibit the controlling authority as to the date, but note the discrepancy in case of any confusion. 69 JX 9. 70 Trial Tr. 36:6–22.

13 owners who did not own a boat. 71 Yeilding asserts he is unable to construct a boat

lift in slip 5 due to a lack of available pylons and due to boat lift motors in slips 4

and 6 that extend “well into” slip 5,72 but has not sought relief based on this

contention, which, accordingly, I do not consider further.

Both the HOA and Yeilding proffered expert witnesses on the issue of marina

depth. 73 Mr. Rob Plitko, Jr., a professional civil engineer, was the expert for the

Plaintiffs.74 Plitko specializes in hydrographic surveying, and has been working in

this field since 2001. 75 Plitko measured the mean low water depth of the marina

using a combination of GPS technology and data from the National Oceanic and

Atmospheric Administration.76 Following his measurements, Plitko produced a

survey.77 Plitko’s survey was consistent with Yeilding’s suspicions, showing that

slips 1 and 2 had a depth of less than 18 inches at mean low tide. 78 Plitko’s survey

showed that slip 5 had sufficient depth. 79 Plitko also testified that it would be

71 Id. at 37:9–38:2; JX 20 (“unit 2 requested slip 3[;] unit 5 requested 1[;] unit 4 requested 2”; the motion to grant the slips in question passed by a majority of owners, though Yeilding voted against). 72 Trial Tr. 34:15–35:3. 73 See generally Trial Tr. 74 See, e.g., Post-Tr. OB 9; JX 8. 75 Post-Tr. OB 9; Trial Tr. 71:5–72:19. 76 See Trial Tr. 73:9–75:21. 77 JX 8. 78 Id. 79 Id.

14 possible to obtain different readings at different times of the year in the same places

in the marina.80

The HOA’s expert witness was Ms. Evelyn Maurmeyer. 81 Maurmeyer has

worked with Delaware marina requirements for 40 years.82 Maurmeyer was

originally retained to prepare for a public hearing regarding Pelican Cove’s renewal

application. 83 Maurmeyer prepared a report in connection with that hearing using a

“calibrated rod,” which does not make use of GPS technology. 84 Per her report,

which was adjusted to mean low water, each of the slips (including slips 1, 2, 3, and

5) had at least 2.3 feet of marina depth, with the outermost slips being about 3 feet

deep. 85

Despite the non-technological approach to measuring marina depths,

Maurmeyer’s report was adjusted for the mean low water level based on the “USGS

Rehoboth Bay tide gage,” which is made available online. 86 Maurmeyer testified

that she had no way of confirming the USGS readings, but that she found it “highly

unlikely that an agency like the USGS would have malfunctioning equipment.”87

Plitko testified that he did not agree with the tidal gage the USGS publicizes, stating

80 Trial Tr. 83:15–19. 81 See generally Trial Tr. 82 Id. at 127:19–128:12. 83 Id. at 129:1–11. 84 See JX 18; see also Trial Tr. 137:21–138:11, 132:11–133:9. 85 Trial Tr. 132:8–134:19; see also JX 18. 86 Trial Tr. 138:12–22. 87 Id. at 139:2–12.

15 that it reads “about six inches higher” than what his GPS provides.88 Plitko has

emailed and called the USGS to report this discrepancy, but he noted that it does not

appear to have been corrected as of trial.89

Maurmeyer acknowledged that the figures she and Plitko had reached were

different, and testified that she believed the figures differed due to the time of year

in which their measurements occurred.90 In support, she discussed the movement of

the sand beneath the water, and the seasonality of sediment in a coastal

environment.91

Maurmeyer was asked during her testimony to review the renewal application

the HOA had submitted. 92 She looked at the exhibit in question, and testified that it

“looked complete, and evidently DNREC deemed it complete. Otherwise, it would

not have gone on public notice.”93 She also testified that the renewal process does

not require a depth survey. 94

88 Id. at 141:14–24. 89 Id. at 143:3–18. I note that this testimony was objected to after the line of questioning had already begun and after answers had been provided. Id. at 143:19–144:3. Once objected to, the line of questioning ceased. I consider the testimony prior to the objection in reviewing the totality of the facts. 90 Id. at 135:1–5. Maurmeyer’s survey occurred in August 2020. See JX 18. Plitko’s survey occurred in March 2020. See JX 8. 91 Trial Tr. 135:8–136:1. 92 Id. at 131:5–24. 93 Id. 94 Id. at 132:1–4.

16 d. Common Area Rental Rules

Finally, the Plaintiffs challenge the Rental Rules adopted by the HOA to

control the Pelican Cove common areas. Particularly, they challenge Rule 3, which

states: “No parties or large social gatherings. People other than those in the rental

party are not allowed on the property. No visitors are allowed.” 95 Their primary

theory is that the Unit Property Act disallows this rule. 96 The Declaration also

contains language very similar to that in the Unit Property Act regarding common

elements, and the Plaintiffs say the Declaration has been violated as well. 97 The

pertinent section of the Unit Property Act reads: “Each unit owner or lessee . . . may

use the common elements in accordance with the purpose for which they are

intended without hindering or encroaching upon the lawful rights of the other unit

owners.”98

The Plaintiffs point out that the rules in question are labeled “Rental Rules,”

meaning that owners can have parties or large social gatherings on the property, or

guests on the property, but that renters cannot. 99 Their contention is that the quoted

95 JX 22. 96 Post-Tr. OB 11. 97 Id. at 12; JX 1, at Yeilding/Myers000359. The Declaration, sensibly, notes that the HOA may adopt rules and regulations “provided they are not in conflict with the Unit Property Act,” among other things. See JX 1, at Yeilding/Myers000355. 98 25 Del. C. § 2205. 99 Post-Tr. OB 11.

17 language “[e]ach unit owner or lessee” from the Unit Property Act 100 prohibits

discrimination between renters and owners. 101

Robinson testified that the Rental Rules were enacted in response to certain

disruptions that were preventing unit owners from enjoyment of the Pelican Cove

property and common elements. 102 Particularly, she testified, the parking lot was

being overrun with visitors, preventing unit owners from being able to park their

cars, and “large, loud parties” were being held.103 Additionally, rental guests went

so far as to damage the neighboring property, the owner of which then filed

complaints with the Pelican Cove HOA.104 The Defendants’ post-trial briefing

clarifies that the issues with large visiting groups began “on the heels of the

Yeildings’ purchase of Unit 7.” 105

B. Procedural History

This case proceeded mostly straightforwardly, if slowly. The original

complaint was filed in October 2019 along with a motion for Temporary Restraining

Order. 106 The motion for Temporary Restraining Order was opposed in November

2019, 107 and the Temporary Restraining Order request was later withdrawn, with a

100 25 Del. C. § 2205. 101 Post-Tr. OB 11. 102 Trial Tr. 119:17–120:1. 103 Id. at 120:19–121:3. 104 Id. at 121:4–9. 105 Post-Tr. AB 21. 106 Compl. for Injunctive Relief, Dkt. No. 1; Mot. for TRO, Dkt. No. 1. 107 Defs.’ Resp. to Mot. for TRO, Dkt. No. 5.

18 new amended complaint filed. 108 The complaint was subsequently amended a

second time. 109 The case then proceeded directly to trial without dispositive motion

practice. 110 Post-trial briefing followed, and I considered the matter submitted for

decision as of the receipt of the post-trial reply brief in January 2022. 111

II. ANALYSIS

The Plaintiffs have alleged four different claims, and seek individual

injunctive relief with respect to each. Notably, the relief requested for each discrete

allegation of wrongdoing differs significantly among the Plaintiffs’ various papers.

The Pre-Trial Stipulation requests considerably more relief in connection with

certain counts than was pled in the Complaint.112 The Complaint’s pleading for

relief also differs from that sought in the post-trial briefing, though not as

significantly. 113 To allow the pleadings to conform to the current state of affairs, so

that the Plaintiffs have the benefit of the development of a full record at trial, I will

treat the post-trial briefing as the operative requested relief.

108 Letter to Sam Glasscock III from Dean A. Campbell, Esq. in Regards to the Motion for TRO and Motion to Amend Teleconference, Dkt. No. 8; Pls.’ Mot. to Amend Compl., Dkt. No. 10; Am. Compl. for Injunctive Relief, Dkt. No. 13. 109 Compl. 110 See Trial Tr. Certain motions in limine were filed prior to the trial; these were later withdrawn. See Defs.’ Mot. in Lim. to Preclude Expert Test., Dkt. No. 28; Mot. in Lim. to Exclude the Test. of Defs. Proposed Expert Witness, Evelyn Maurmeyer, Dkt. No. 31. 111 Post-Tr. OB; Post-Tr. AB; Post-Tr. RB. 112 See Compl. ¶¶ 1–7; Stip. at IV ¶¶ 1–6. 113 See Compl. ¶¶ 1–7; Post-Tr. OB 12–14.

19 The permanent injunction standard requires the plaintiff to demonstrate that:

(1) it has proven actual success on the merits of the claims; (2) irreparable harm will

be suffered if injunctive relief is not granted; and (3) the harm that will result if an

injunction is not entered outweighs the harm that would result if an injunction is

granted.114 The equities must ultimately support the relief sought.115

Accordingly, I will assess the legal viability of each claim before turning to

an analysis of whether injunctive relief should issue. I have treated each of the four

complaints separately below. Before that, however, it is useful to address the

allegations by the Plaintiffs that the Defendants have violated a dog’s breakfast of

statutes and regulations—including contentions raised at various stages of the

litigation 116 that the Defendants have violated the Unit Property Act, the Dewey

Beach Occupancy Code, Fire Safety Codes, and DNREC regulations. Further, per

the Plaintiffs, these violations support declaratory judgment and equitable relief.

Even assuming the predicate violations, this conclusion is unsupported. The

Plaintiffs have failed even to attempt to show that they have a private right of action

based on statutory or regulatory violations.

114 Christiana Town Ctr., LLC, v. New Castle Cty., 2003 WL 21314499, at *2 (Del. Ch. June 6, 2003), aff’d, 841 A.2d 307 (Del. 2004). 115 Cf. DeMarco v. Christina Care Health Servs., Inc., 263 A.3d 423, 434 (Del. Ch. 2021) (assessing as a final matter whether “the balance of the equities” tips for or against the requested injunction). 116 See, e.g., supra note 52; infra note 143.

20 I first note that the Plaintiffs have failed to cite any provision in any of these

statutes and regulations providing explicitly that the General Assembly (or the

entities to which it conferred regulatory authority) intended to provide a private right

of action for any violation. The absence of an express statutory right of action does

not necessarily bar any related cause of action, however. 117 Delaware caselaw has

applied a three-prong test to assess whether a private right of action is available

under a statute: asking first whether the plaintiff is a member of a class for whose

“special benefit” the statute was enacted, then, if so, whether there is any indication

of legislative intent to create or to deny a private remedy for violation of the act, and,

if there is no indicia of legislative intent, whether the recognition of an implied right

of action would advance the purposes of the act.118 In certain instances, the Court

has found intent to create a private remedy “where a statute was obviously enacted

117 See Lock v. Schreppler, 426 A.2d 856, 864 (Del. Super. 1981), overruled on other grounds by E. Com. Realty Corp. v. Fusco, 654 A.2d 833 (Del. 1995). 118 See O’Neill v. Town of Middletown, 2006 WL 205071, at *16 (Del. Ch. Jan. 18, 2006) (citing Cort v. Ash, 422 U.S. 66 (1975); then citing Lock, 426 A.2d at 864; then citing Schuster v. Derocili, 775 A.2d 1029, 1036 n.42 (Del. 2001); then citing Brett v. Berkowitz, 706 A.2d 509, 512 (Del. 1998); and then citing Mann v. Oppenheimer & Co., 517 A.2d 1056, 1064–66 (Del. 1986)). Delaware caselaw does not appear to often approach the third prong of this test. For instance, Brett resolved the question of availability of a private right of action by finding that legislative intent was to protect the public, and did not reach the third prong. Brett, 702 A.2d at 512–13. Mann stated outright that where civil actions might arguably “further enforce the Act . . . this alone will not confer a private remedy.” Mann, 517 A.2d at 1066 (citing Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 21–22 (1979)). Similarly, O’Neill addressed a then-recent United States Supreme Court precedent, Alexander v. Sandoval, which had narrowed its prior holding in Cort v. Ash to indicate that “[s]tatutory intent on” the issue of a private remedy “is determinative.” See O’Neill, 2006 WL 205071, at *19 (quoting Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001)).

21 for the protection of a designated class of individuals.” 119 But where statutes impose

“general prohibitions,” the legislative intent may be to “protect the public at

large,”120 therefore precluding the availability of a private right of action. 121

Here, again, the Plaintiffs have utterly failed to attempt to demonstrate that

any statutory violations, should they exist, confer on them a right of action via which

they may invoke equity. Accordingly, I do not address the statutes, codes, or

regulations further, and proceed on the understanding that the Plaintiffs’ rights are

conferred via their contractual relationship with the Defendants, through the

Declaration or otherwise.

As described in detail in the fact section above, Robinson remodeled her Unit

#2 in part; the Plaintiffs challenge this action as violating both the Declaration and

the Unit Property Act. Less directly pled (but in any event addressed below),

Yeilding also notes that if the remodeling fails or causes any repairs to become

necessary to the common elements, as holder of a 34% interest in the condominium,

he may be responsible for paying 34% of the repairs.

119 Brett, 706 A.2d at 512 (citations omitted). For example, one Delaware Superior Court case found a private right of action to exist in a statute designed per its text to benefit employees and prospective employees. See Heller v. Dover Warehouse Mkt., Inc., 515 A.2d 178, 180 (Del. Super. June 17, 1986). 120 Brett, 706 A.2d at 512–13. 121 See id.; cf. Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (discussing the “traditional” view that a duty to the public does not give rise to private rights of action, but then discussing the evolution of caselaw to loosen that traditional standard).

22 The causes of action underlying the request for injunctive relief appear to the

Court to be breach of contract—the Declaration—and vindication of a statute—the

Unit Property Act. As noted above, I consider the underlying action for invocation

of injunctive relief to sound in contract.

Yeilding objects to Robinson’s alterations to Unit #2 for two reasons: first, he

posits that the alterations require an amendment to the Declaration and the

Declaration Plan, and second, he expects that Robinson’s changes have resulted in

changes to the common elements prohibited under the Declaration.122

Robinson testified at trial that she originally sought to establish a second

bedroom in her unit, but that she ultimately ended up with “an enlarged bedroom”

with an adjoining office, which is not a “separate room[].” 123 Following trial, the

Plaintiffs still challenge whether the remodeling affected the common elements of

“plumbing, both water supply and sewer discharge.” 124

The pertinent section of the Declaration describes the following as common

elements:

The plumbing facilities installed for use outside the various individual units . . . . The sanitary sewage facilities, including waste pipes from the individual units . . . . Common plumbing, vent, and waste lines located in party walls . . . . Water system and pipe lines

122 See Post-Tr. OB 3. 123 Trial Tr. 123:24–124:4. 124 Post-Tr. OB 4.

23 leading from the source of supply to the individual units.125

If Unit #2’s remodeling made changes to any of these elements, Robinson

would have needed to obtain “the written consent and approval of the council.” 126

I do not have the benefit of expert testimony with respect to this issue, so I am

left to rely on the representations of the parties.127 Yeilding purported to testify to

the changes to Robinson’s unit based on a “walk through” he did “one time” after

asking “the construction fellow if I could walk through and take a couple

pictures.” 128 He noted that the kitchen and the bathroom had been moved as a result

of the remodeling. 129

Robinson testified to as much.130 But beyond that confirmation, Robinson

also testified that the plumbing comes into her unit at the same place as it did pre-

remodel, and that the sewage and wastewater disposals go out at the same place as

pre-remodel. 131 She also confirmed that nothing was done to the “common

plumbing vent or waste lines in the walls.”132

125 JX 1, at Yeilding/Myers000357–358. 126 Id. at Yeilding/Myers000366. 127 I do have at my disposal JX 16, which contains the building permits Robinson obtained for her remodel. See JX 16. Neither party has stressed the importance of this permit application, and I frankly read it as inconclusive as to whether the common elements were altered. Because of the lack of reliance upon this document, I consider it only minimally in making my ultimate conclusion. 128 Trial Tr. 23:18–24:9. 129 Id. 130 Id. at 124:13–125:4. 131 Id. at 117:14–20. 132 Id. at 118:12–14.

24 I find both parties’ testimony credible. Fortunately, they are not in direct

contradiction, and I interpret them so as to avoid implied contradiction. 133 Taking

Robinson’s testimony as true, then, I find that the common elements were not

impermissibly altered.

This leaves the second basis upon which Yeilding sues in regard to Unit #2:

the mismatch between the Declaration, the Declaration Plan, and Unit #2’s layout in

reality. I agree that at the very least, there is a lack of harmony between the

Declaration Plan and Unit #2. It is less clear that there is a conflict between Unit #2

and the Declaration—as the testimony from various witnesses showed, it is certainly

possible to describe the layout of Unit #2 in multiple ways, and therefore the

description in the Declaration may be sufficient—but at any rate, the diagram in the

Declaration Plan is no longer strictly accurate.134

Assuming, without deciding, that the Declaration Plan is a substantive part of

the Declaration; that, if Unit #2’s layout is inconsistent with the Declaration Plan,

this causes some sort of contractual harm to Yeilding under the contractual

133 See Davidson v. Wilson, 1869 WL 1361, at *308 (Del. Ch. Feb. 1, 1869) (“It is a rule of law as well as of charity that when the fact proved may be harmonized with the answer the Court shall rather do that than impute perjury to the defendant.”); cf. State v. Kisielewski, 1991 WL 138365, at *1 (Del. Super. June 28, 1991) (harmonizing testimony of various witnesses); Nationwide Mut. Ins. Co. v. Hockessin Const., Inc., 1996 WL 453325, at *4 (Del. Super. May 15, 1996) (same). 134 I note that the Plaintiffs argue that this lack of accuracy violates the Unit Property Act, although how is unclear to me. At any event, for the reasons above, I find the statutory allegation insufficient to support relief.

25 relationship between himself and the HOA; 135 and that Yeilding has proven actual

success on the question of whether Unit #2’s layout is presently in conflict with the

Declaration, I turn to the requested relief.

The Plaintiffs seek an injunction and suggest two forms for such injunction.136

They first suggest an injunction requiring the HOA to amend the Declaration to

properly describe Unit #2.137 Alternately, they suggest that an injunction be entered

requiring Unit #2 to be returned to its “pre-existing state.” 138

For the Plaintiffs to receive injunctive relief, I must find that the Plaintiffs

have shown that irreparable harm will be suffered if such relief is not granted.139

There has been no showing of threatened or actual irreparable harm in the record.

When asked at trial, Yeilding noted a prior instance when a remodel was improperly

undertaken and he was responsible for a portion of the resulting costs to fix common

elements.140 Yeilding’s concern with respect to this point is understandable. When

the prior repairs failed, due to his significant ownership interest in Pelican Cove, he

had been compelled to pay 34% of the remediation costs (in proportion to his 34%

135 To the extent this is argued in the post-trial briefing, I confess difficulty in locating and following the argument. The relief, however, does request a determination from the Court that the Unit #2 remodel was “in violation of the Declaration.” See Post-Tr. OB 12. 136 Id. 137 Id. 138 Id. 139 Christiana Town Ctr., 2003 WL 21314499, at *2. 140 Trial Tr. 26:19–28:18.

26 ownership interest).141 However sympathetic this position, though, fear over

potential future harm is not equivalent to irreparable harm necessary to injunctive

relief. More fundamentally, having determined that the alterations to Unit #2 do not

alter common elements, the Plaintiffs’ fear of future expense is presently unfounded.

This obviates consideration of a mandatory injunction to restore the prior

configuration of the unit. The Plaintiffs do not even suggest that any irreparable

harm accompanies failure to enter the alternative injunction requested—that the

Defendants be enjoined to amend the Declaration Plan.

Yeilding also notes that if load-bearing walls were moved, the unit above Unit

#2 could suffer damage. 142 True, perhaps, but no evidence was presented to suggest

that a load-bearing wall was moved. In fact, Robinson testified that no walls were

removed. 143

The Plaintiffs also request a declaratory judgment stating that the renovation

of Unit #2 is in violation of both Delaware law 144 and the Declaration. I have already

141 See supra note 42 and accompanying text. 142 Trial Tr. 27:11–28:18. 143 See supra note 35 and accompanying text. 144 See Post-Tr. OB 12. In my reading of the opening post-trial briefing, the Plaintiffs seek a declaration that the Unit Property Act is the positive Delaware law being offended. See id. There was a brief mention at trial and again in the reply post-trial briefing that “Dewey Beach’s Occupancy Ordinance” would be violated in the event that the Robinsons hosted their child’s grandparents. See Trial Tr. 20:13–21:6 (noting that Robinson had herself raised this issue and therefore was looking to add a second bedroom to her unit at some point during the remodel process); see Post-Tr. RB 10–11. This issue is not properly before the Court. The ordinance has not been cited, and the issue was not raised in the post-trial opening briefing such that the Defendants could respond. Further, the issue is not ripe; it presupposes a hypothetical, and finally

27 noted above that the construction has, at least, created a conflict between reality and

the Declaration Plan as illustrated. The right to a declaratory judgment, however, is

a limited right. Where a concrete dispute exists, the Declaratory Judgment Act

deviates from the common law to avoid the harsh result of having to await an actual

injury to address the controversy.145 The Plaintiffs, however, have failed to establish

an actual controversy. 146 The following prerequisites must be satisfied for an actual

controversy to exist: the controversy must (1) involve the rights or other legal

relations of the party seeking declaratory relief; (2) be a controversy in which the

claim is asserted against one who has an interest in contesting the claim; (3) be

between parties whose interests are real and adverse; and (4) be ripe for judicial

determination.147

The Plaintiffs have failed to show that their rights are at issue, that the

Defendants have any legal interest in opposing any claim of right, or that the interests

here are real and adverse. At most, the Plaintiffs have shown that the renovations

have made the diagram on the Declaration Plan inaccurate. They would like a

is not supported by the testimony at trial. I do not consider the Dewey Beach Occupancy Ordinance further. 145 See, e.g., Rollins Int’l, Inc. v. Int’l Hydronics Corp., 303 A.2d 660, 662 (Del. 1973) (citation omitted) (“[T]he basic purpose of the Declaratory Judgment Act is to enable the courts to adjudicate a controversy prior to the time when a remedy is traditionally available and, thus, to advance the stage at which a matter is traditionally justiciable.”) 146 XL Specialty Ins. Co. v. WMI Liquidating Tr., 93 A.3d 1208, 1216–17 (Del. 2014) (citing 10 Del. C. § 6501; then citing Stroud v. Milliken Enters., Inc., 552 A.2d 476, 479 (Del. 1989)). 147 Id. at 1217 (citing Stroud, 552 A.2d at 479–80).

28 judgment saying that this is a legal wrong. They have failed (in light of my

determination that the common elements are not affected by the renovations) to

establish that any right or interest they hold is at issue. To be clear, an interest in a

legal win for its own sake is insufficient foundation upon which to erect a declaratory

judgment, and the Plaintiffs have shown no other.

The thrust of the Plaintiffs’ arguments with respect to the balcony obstructions

is that the presence of deck chairs and furniture upon the deck breaches a contract—

specifically, that they breach the Declaration. The pertinent section of the

Declaration reads:

Use of all common elements shall in general be subject to such reasonable rules and regulations as may be from time to time adopted and amended . . . . Without the prior written authorization of the council, no common element shall be obstructed . . . . Furthermore, no towels, blankets, clothing, or other material of any kind shall be hung or draped or allowed to remain at or on any of the balconies, railings, porches, patios, docks, or catwalks of the property. 148

The Plaintiffs contend that in placing deck chairs outside their units, the other

unit owners are “obstruct[ing]” the common elements.149 The Declaration also

148 JX 1, at Yeilding/Myers000360–61 (emphasis added). 149 See Post-Tr. OB 13.

29 provides: “[a]ny conflicts between the Declaration and Code of Regulations shall, if

not otherwise reconciliable [sic], be resolved in favor of the Declaration.” 150

The Code of Regulations, on the topic, states as follows: “A unit owner shall

not place or cause to be placed in any common element area any furniture, packages,

or objects of any kind unless prior written consent from the Council is provided to

the unit owner.” 151 This language is reflective of an update made to the original

Code of Regulations by the HOA in May 2020. 152 That amendment was recorded

as found at joint exhibit 23.153

As identified in the fact section above, the deck constitutes a common

element. 154 The main questions are whether the deck chairs other residents have

placed upon the deck are impermissible obstructions under the text of the

Declaration and the Code of Regulations, and whether a written exception has been

provided.

The Plaintiffs’ argument is that the Declaration requires a two-thirds vote in

order to be amended (which would require the Yeildings’ approval, which has not

been granted to date155), and that if the Declaration conflicts in any way with the

Code of Regulations, the Declaration must govern. Both of these theories are

150 JX 1, at Yeilding/Myers000365. 151 JX 23. 152 See JX 21. 153 JX 23. 154 See supra note 44 and accompanying text. 155 See JX 21.

30 grounded in the text of the Declaration.156 But, in my view, the Plaintiffs misread

the Declaration.

The Declaration calls for “prior written authorization of the council” in order

for obstructions such as the deck chairs to be allowed to linger. 157 But the HOA has

provided prior written authorization, following the amendment to the Code of

Regulations. 158 On May 4, 2020, the President of the HOA signed a writing reading:

In accordance with Article V, Section 4, Use of Common Elements, of the Code of Regulations for Pelican Cove Condominium, chairs, tables, and other small objects may be located on the upstairs balcony in front of Units 4, 5, & 6, in a manner that does not unreasonably restrict ingress, egress, or passage, is hereby approved by Pelican Cove Condominium Council, effective May 2, 2020.159

The Plaintiffs have not provided any reason why the May 4 writing is

insufficient to confer authorization, other than their belief that the Declaration must

have been the forum for providing written authorization.160 But the Declaration

itself does not specify that the prior written authorization take the form of an

amendment to the Declaration.161 And an amendment to the Code of Regulations

requires only majority support, rather than two-thirds support. 162 The meeting

156 See JX 1, at Yeilding/Myers000365; see id. at Yeilding/Myers000364. 157 Id. at Yeilding/Myers000360. 158 See, e.g., JX 23, JX 21. 159 JX 21. The somewhat confusing syntax of the authorization is the original. See id. 160 Post-Tr. OB 7. 161 See JX 1, at Yeilding/Myers000360–361. 162 See JX 5, at Yeilding/Myers000382.

31 minutes from the HOA’s discussion indicate that the other six unit owners all voted

in favor of permitting furniture on the deck so long as ingress and egress remained

possible, thus constituting a majority sufficient to amend the Code of Regulations.163

It follows that the Code of Regulations in its current form, and the May 4 notice,

together provide adequate prior written authorization under an objective reading of

the text.164

The Plaintiffs’ post-trial reply briefing does not strongly press the question of

whether a conflict exists between the Declaration and the Code of Regulations at

present, but the issue was raised in the post-trial opening brief. 165 I address the

potential conflict concisely for completeness’s sake. To my mind, any potential

conflict between the Declaration and the Code of Regulations regarding obstruction

of the deck as a common element is, as the Declaration provides, reconcilable. The

Declaration only controls if the Code of Regulations is in irreconcilable conflict

therewith. If one reads—as I do—the amendment to the Code of Regulations as

performative of the Declaration’s requirement that prior written authorization of the

HOA be obtained, then it is apparent that no irreconcilable conflict exists.

The Plaintiffs have not proven a breach of contract with respect to the so-

called balcony obstructions. As the underlying claim fails on the merits, I do not

163 See JX 21. 164 See JX 23. 165 See Post-Tr. OB 6–7; Trial Tr. 32:2–10.

32 reach the issue of the Plaintiffs’ requested injunctive relief. I do note that based on

the evidence, it is unlikely that either the irreparable harm or balancing requirements

of the test for injunctive relief are satisfied here.

The marina depth issue primarily relates to the navigability of slips under the

Declaration’s applicable definition. The Declaration indicates that navigability for

the purposes of the agreement is “18 inches of water at mean low tide.” 166 The

predicate issue to be established upon the merits is whether the actual depth of the

marina falls short of 18 inches and constitutes a breach of contract, as the Declaration

forms an “ordinary contract” among the unit owners. 167

As noted in the facts above, if a slip becomes non-navigable, the unit using

that slip may notify the HOA in writing, presumably implying a right to relief—

dredging or some other “mutually agreeable” action—regarding that slip.168

Yeilding is assigned slip 5 by the HOA, 169 Unit #5 is assigned slip 1, Unit #4 is

assigned slip 2, and Unit #2 is assigned slip 3. 170

The parties presented two different expert witnesses at trial. Plitko, the

Plaintiffs’ expert, provided a survey that demonstrated a depth of under 18 inches in

166 JX 4, at Yeilding/Myers000411. 167 See Council of Dorset Condo. Apartments v. Gordon, 801 A.2d 1, 5 (Del. 2002). 168 JX 4, at Yeilding/Myers000411. 169 See Trial Tr. 37:18–38:2. 170 JX 20.

33 slips 1 and 2 at mean low tide. 171 Plitko’s survey also demonstrated that slip 5 had

sufficient depth to be navigable under the definition in the Declaration.172 The

Defendants’ expert, Maurmeyer, also prepared a report that assessed the depth of

each of the Pelican Cove slips.173 Maurmeyer’s report also showed that slip 5—and

all other slips—were navigable per the terms of the Declaration. 174

Because Yeilding is assigned to slip 5, he does not have a right to enforce the

navigability or lack thereof in slips 1 and 2. Both of the expert witnesses showed

that slip 5, assigned to Yeilding, was sufficiently navigable.175 Therefore, he has not

shown a breach of contract under the Declaration.

The Plaintiffs challenge this conclusion, arguing that the Third Amendment

to the Declaration “guarantees” to all unit owners “seven (7) navigable boat slips.”176

But this is not how the Declaration reads. The Declaration states as follows:

The pier has 7 boat slips that make up the marina. . . . Each unit is entitled to one navigable boat slip. . . . Should a unit using a slip that has become un-navigable wish to have the slip returned to a navigable condition, the unit shall notify the Condominium in writing. . . . The right of each unit to a navigable boat slip is guaranteed by this agreement.177

171 JX 8. 172 See id. 173 See JX 18. 174 See id. 175 See JX 8; JX 18. 176 See Post-Tr. OB 8. 177 JX 4, at Yeilding/Myers000411 (emphasis added).

34 Nowhere does the text of the Declaration guarantee seven navigable slips to

any one unit owner, or to the collective of owners. Rather, the Declaration clarifies

in two instances that “[e]ach unit is entitled to one navigable boat slip” and that the

“right of each unit to a navigable boat slip” is guaranteed.178 In fact, the contractual

language contemplates that unit owners may waive the right to a navigable slip.

Yeilding cannot assert a right to seven navigable boat slips; he can only assert a right

with respect to the slip assigned to him—slip 5. As discussed above, slip 5 is

navigable. Therefore, any breach of contract claim cannot be found meritorious.

The Plaintiffs have separately intimated that the HOA’s application to renew

its subaqueous lease with DNREC was made lacking proper authority. The predicate

claim is unclear.179 The Plaintiffs appear to suggest that the HOA’s actions were

not pursuant to a proper vote, and that “committing the owners” to a renewal

thereby—including Yeilding and his 34% interest—puts the Plaintiffs (and other

unit owners) on the hook for the costs of maintenance, repairs, insurance, and storm

damage—the costs of maintaining a marina—without a vote.180 This argument, in

light of the Plaintiffs’ other arguments regarding the marina, fails a sniff test.

Yeilding himself testified that “one of the main reasons why we purchased the unit,

178 See id. (emphasis added). 179 The post-trial reply brief attempts to make an argument for a breach of contract based on the potential subaqueous lease number and lease duration; this argument I confess I cannot follow. See Post-Tr. RB 16; see also JX 4, at Yeilding/Myers000411. 180 Stip. at I ¶ 2a; Post-Tr. RB 16.

35 is because of the marina.”181 A substantial part of this litigation involved Yeilding’s

argument that the Plaintiffs have a right to have the entire marina dredged, sufficient

to make each slip navigable. As the Plaintiffs also point out, the Declaration

provides for the maintenance of the marina for the unit owners.182 Yeilding’s

separate argument that the subaqueous lease renewal application was ultra vires

because he was denied a right to vote against the authority of the HOA to apply for

a permit to maintain the (Declaration-required) marina is insufficient to support

injunctive relief. Given the Plaintiffs’ request that I enjoin the HOA to dredge the

marina,183 it is unclear what remedy they even seek in connection with the HOA’s

subaqueous lease renewal application. And while the Plaintiffs also argue defects

in the renewal application itself, if true this still leaves the question of what right the

Plaintiffs seek to vindicate in this context, or how equity may vindicate that right.

No cogent claim appears to have been made here, whether for breach of

contract or otherwise. 184 Because no meritorious claim has been proven by the

181 Trial Tr. 33:2–9. 182 JX 4, at Yeilding/Myers000411. 183 Post-Tr. OB 14. 184 Yeilding testified that he is dissatisfied with slip 5 because it does not provide space for a boat lift. See Trial Tr. 34:15–24. The Declaration does not guarantee ability to install a boat lift, however. See JX 4, at Yeilding/Myers000411. Yeilding also complains that his access to the finger pier associated with slip 5—and thus access to his boat—is partially blocked or made less convenient by a neighbor’s boat lift. See Trial Tr. 35:20–24. Yeilding has not sought relief on this ground, in any event.

36 Plaintiffs with respect to the marina depth or the subaqueous lease renewal

application, their request for related injunctive relief is denied.

D. Common Area Rental Rules

Finally, the Plaintiffs seek a negative injunction enjoining the HOA from

posting or enforcing the Rental Rules, especially Rule 3. 185

In support, the Plaintiffs argue that the Rental Rules violate both the

Declaration and the Unit Properties Act. The argument focuses wholly on Rule 3,

which reads: “No parties or large social gatherings. People other than those in the

rental party are not allowed on the property. No visitors are allowed.”186 For the

reasons articulated above, my analysis focuses on the contractual argument.187

The Declaration states that the “undivided interest in the common

elements . . . shall not be separated from the unit to which said interest appertains,

and shall be . . . leased . . . with the unit even though such interest is not expressly

mentioned or described in a conveyance or instrument.”188 In chief, the Plaintiffs

contend that each lessee—including those renters to whom the Yeildings “lease”189

185 Post-Tr. OB 14. It is not clear that the Plaintiffs solely challenge Rule 3, but it is the sole focus of their arguments. See id. (“The relief requested on this issue is a negative injunction enjoining the Council from posting or enforcing the rule limiting tenants’ rights.”). 186 JX 22. 187 The statutory argument is largely duplicative of the allegations of breach of the Declaration, I note. 188 JX 1, at Yeilding/Myers000359 (emphasis added). 189 I note that the terms renter/lessee/tenant, rent/lease, and other variations appear to have been used somewhat interchangeably both in the previous litigation and in the briefing and argument here. See, e.g., Council of Ass’n of Unit Owners of Pelican Cove Condo. v. Yeilding, 2019 WL 2339531, at *5 (Del. Ch. June 3, 2019). No real briefing has been attempted on the precise issue

37 Unit #7 at various times throughout the year—is entitled to equal use of the common

elements with other lessees and owners. 190 The Plaintiffs read Rule 3 (denominated

as a Rental Rule) to treat owners differently from tenants/lessees, by allowing

owners to invite guests to common-area parties, while denying that use to renters.191

Per the Plaintiffs, according to the Declaration, unit owners and renters must have

the same rights to the common areas.192 By prohibiting use of the common area by

renters’ “guests,” while not so limiting owners’ guests, the Defendants have

breached the Declaration via the Rental Rules.193

The Plaintiffs’ reading of the Rental Rules appears, at first blush, to be strictly

based upon the title (“PELICAN COVE BEACH HOUSE RENTAL RULES”).194

The Defendants’ response to this count is largely predicated upon the supposition

that the rules in fact treat tenants and owners identically.195 But the joint exhibit

describing the Rental Rules submitted to the Court specifies at the bottom of the

page, “**These rules apply to renter [sic] and are not applicable to Pelican Cove

of the relationship engendered between Yeilding and those who lease and/or rent Unit #7 from him upon occasion, though the Plaintiffs assert the relationship rises to the level of a “landlord-tenant relationship.” See Post-Tr. RB 19. It seems to me that argument on this issue could have been helpful, as it is not entirely clear that Yeilding’s renters are in fact contractual lessees, but as the issue has not been pursued, I assume, without finding, that those renting from the Yeildings are “lessees.” 190 See Post-Tr. OB 11, though I note that most of this discussion is in the context of the statutory challenge to the Rental Rules under the Unit Property Act. 191 See id. 192 See id. at 12. 193 See, e.g., Post-Tr. RB 19. 194 JX 22 (emphasis added). 195 Post-Tr. AB 22.

38 owners**.”196 The joint exhibit makes it clear that the Defendants’ theory is

inaccurate. 197 Accordingly, I find that the Rental Rules treat short-term renters’

rights to the common areas as inferior to that of owners. I assume that a short-term

rental is a type of “lease” under the terms of the Declaration. 198

For purposes of this analysis, then, I find the Rental Rules, at Rule 3, to be in

conflict with the Declaration. I turn to the request for injunctive relief.

The only basis for irreparable harm that the Plaintiffs have posited is the

Rental Rules’ interference with a property right. 199 And indeed, this Court has held

before that interference with a property right itself constitutes irreparable harm.200

Here, however, the harm, if any, is more attenuated. The Plaintiffs themselves are

owners, and Rule 3 does not impinge on their right to invite guests to bacchanals in

the common area—in fact it is their purported freedom to engage in common-area

revelry, as owners, that sets up the impermissible distinction regarding their tenants.

If the Plaintiffs are suffering harm, then, it must be because their tenants’ rights to

196 JX 22. 197 I do note for fairness’s sake that the Code of Regulations, which does act upon the owners, identifies “Rules of Conduct” somewhat similar to the third Rental Rule, requiring residents to exercise “extreme care not to make noises or use musical instruments, radios, televisions, or amplifie[] in such volume as to disturb other residents.” JX 5, at Yeilding/Myers000377. So, while the Code of Regulations does not specifically prohibit the owners from throwing common- area parties, the intent is likely similar across the different provisions. 198 See supra note 188. 199 Post-Tr. RB 20; Compl. ¶ 72; Post-Tr. OB 15. 200 See, e.g., Vansant v. Ocean Dunes Condo. Council Inc., 2014 WL 718058, at *1 (Del. Ch. Feb. 26, 2014); Kusumi v. Sproesser, 2021 WL 4059960, at *3 n.15 (Del. Ch. Apr. 7, 2021); Kuhns v. Bruce A. Hiler Delaware QPRT, 2014 WL 1292860, at *23 (Del. Ch. Mar. 31, 2014); Bogia v. Kleiner, 2019 WL 3761647, at *9 (Del. Ch. Aug. 8, 2019).

39 such bacchanals are an important consideration for rentals, and thus Rule 3 is

harming the Plaintiffs’ rental business. The record is silent in support of this

contention;201 in fact, the Plaintiffs’ own rental agent has stated the opposite to the

HOA, noting that “renters now a days [sic] are savvy to the restrictions and know

how to get around them.” 202 This statement at least suggests that the number of

renters who decide not to rent Unit #7 as a result of the Rental Rules, if any, is

minimal. In any event, such a loss to the Plaintiffs could presumably be remedied

by damages in the case of a discrete inability to rent.203 On the record created at

trial, there is no basis to conclude, even if the distinction drawn against tenants in

the Rental Rules violates the Declaration, that the Plaintiffs will suffer irreparable

harm absent an injunction.

If this were a better world, I would be confident that the parties 204 could agree

to a minor modification of the Rental Rules that would permit restriction of the kind

of anti-social behavior obnoxious to the HOA, while still in compliance with the

201 The closest the Plaintiffs come to providing evidence on this front is Yeilding’s testimony that some renters have been “contacted by owners, that were going to have some people over.” Trial Tr. 46:16–47:10. But there is no allegation that any rental business was lost as a result of this contact. See id. 202 JX 20. 203 Of course, if the Plaintiffs had provided persuasive evidence that their rental business in their unit was being harmed in a way tangible but unquantifiable, irreparable harm would have been shown and would, perhaps, justify injunction. No such showing was proven here. 204 To be “neighborly,” per Mr. Webster, is to be friendly. “Neighbor” is the root of “neighborly.” The connection between the words, alas, is tenuous.

40 Declaration. Sad experience has disabused me of such confidence. Nonetheless, I

cannot provide the relief in equity the Plaintiffs seek here.

III. CONCLUSION

The Plaintiffs’ requests for injunctive relief and declaratory judgment are each

individually DENIED for the foregoing reasons. The parties should submit a form

of order.