DALE YEILDING аnd SANDRA YEILDING, husband and wife v. COUNCIL OF ASSOCIATION OF UNIT OWNERS OF PELICAN COVE CONDOMINIUM and CATHERINE ROBINSON
C.A. No.: 2019-0826-SG
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
April 20, 2022
GLASSCOCK, Vice Chancellor
Date Submitted: January 21, 2022
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.
MEMORANDUM OPINION
GLASSCOCK, Vice Chancellor
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
I. BACKGROUND4
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 Cоmplaint 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
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
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.”
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
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
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
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
Of note, Yeilding testified that failures in prior changes or reрairs 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
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
c. The Pelican Cove Marina
Pelican Cove is situated next to a marina and provides its unit owners with access to thе 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
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
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 documents65—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, 201768 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
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
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
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, аnd 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
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 partiеs or large social gatherings on the property, or guests on the property, but that renters cannot.99 Their contention is that the quoted
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
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.
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 litigation116 that the Defendants have violated the
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
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.
A. Unit Alterations
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.
Yeilding objects to Robinson‘s alterаtions 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
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 havе 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
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
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 layоut 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
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%
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 law144 and the Declaration. I have already
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
B. Balcony Obstructions
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
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 Codе 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
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
The Plaintiffs’ post-trial reply briefing does not strongly press thе 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
C. The Pelican Cove Marina
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
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
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,
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
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
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
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
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
If this were a better world, I would be confident that the parties204 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
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.