2026-08-16 · Delaware · Courts

Delaware has answered a question that sits at the collision point of covenant enforcement and disability accommodation: continuing to prosecute a deed-restriction lawsuit is not, by itself, a violation of the Delaware Fair Housing Act. The right to petition the courts protects it.

The Superior Court so held on August 5, 2025 in Delaware Human and Civil Rights Commission, ex rel. Cahill v. Welch, C.A. No. N24C-12-088 KMM, Judge Kathleen M. Miller granting the motion to dismiss; a further opinion of October 9, 2025 denied the defendants' fee application and noted that this was the first Delaware case applying the Noerr-Pennington doctrine to a civil rights statute.¹²

The fence, and the two lawsuits

Boulder Brook, in Wilmington, has carried a deed restriction since 1945, since amended. It requires the approval of one-third of residents — including every resident of an adjacent lot — before any fence is built, and limits fences to open style and four feet.

New owners built a six-foot stockade fence without seeking approval. Neighbours sued in the Court of Chancery to enforce the restriction.

Mid-litigation, the fence owners asserted that the fence was a reasonable accommodation for health conditions and filed with the Delaware Human and Civil Rights Commission. The Department of Justice then sued the neighbours in Superior Court, on the theory that continuing to prosecute the covenant case violated the Fair Housing Act.

What the court held

Two holdings, and the first is jurisdictional. The Superior Court has no power to issue an injunction under the Delaware Fair Housing Act; injunctive jurisdiction belongs exclusively to the Court of Chancery. The request for an order declaring the fence an accommodation that supersedes the deed restriction was dismissed on that ground alone.

The second holding is the substantive one. Noerr-Pennington immunises covenant-enforcement litigation from Fair Housing Act liability. The right to petition the government includes the right to sue in court, and the doctrine is not confined to cases where the government is a party. The “sham litigation” exception did not apply, because a Magistrate had already found the deed restriction enforceable — so the suit was not a pretext.

1. Delaware Human and Civil Rights Commission, ex rel. Cahill v. Welch, C.A. No. N24C-12-088 KMM (Del. Super. Aug. 5, 2025) (Miller, J.) — motion to dismiss granted ↩
2. Delaware Human and Civil Rights Commission ex rel. Cahill v. Welch — opinion on defendants' fee application (Del. Super. Oct. 9, 2025) (Miller, J.) ↩
3. Yu v. Cahill, C.A. No. 2022-0014-SEM (MTZ), Order Regarding Exceptions (Del. Ch. Jan. 21, 2026) (Zurn, V.C.) ↩