Covenants that require an architectural review committee or homeowners association board to approve owner changes to their homes and grounds have been a mainstay in Delaware condominium and non-condominium community documents for many years. A recent Master's Report in a Delaware Court of Chancery case has invalidated the architectural approval requirements for one Delaware condominium, leaving many other Delaware communities scrambling to determine whether their own covenants are enforceable.
In Benner v. Council of the Narrows Association of Owners, C.A. No. 7503-ML, 2014 Del. Ch. LEXIS 265 (Dec. 22, 2014) (unpublished), the owner of a unit in a 15-unit condominium project created under the Delaware Unit Property Act brought suit to compel approval of exterior alterations to her unit. Specifically, Mrs. Benner wanted to enclose two porches. The condominium Declaration contained typical provisions requiring the condominium Council's approval of all changes to exterior portions of units, and stated "[n]o Unit Owner shall make any structural addition, alteration or improvement in or to his Unit without the prior written consent thereof of the Council." The Declaration did not set forth any sort of standard or conditions for the approval of alterations.
The Council claimed that the community standard for architectural approval was that alterations be substantially similar to original construction. The source of this standard was not in the Declaration itself, but a provision in the condominium Code of Regulations that governs repairs. Though these repair provisions stated that "[a]ll repairs and replacement shall be substantially similar to the original construction and installation," the Code did not require the Council to approve repairs.