Delaware shields covenant-enforcement lawsuits from Fair Housing Act liability
Delaware shields covenant-enforcement lawsuits from Fair Housing Act liability
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.
The equitable side came out the same way
The covenant case itself concluded in the association's favour, and on January 21, 2026 Vice Chancellor Morgan T. Zurn dismissed the fence owners' exceptions in Yu v. Cahill, C.A. No. 2022-0014-SEM (MTZ), leaving Magistrate Selena E. Molina's September 6, 2024 final report standing.3
Two rulings there matter beyond the parties.
Irreparable harm from a deed-restriction violation is “nearly presumed” as a matter of Delaware law. An ongoing covenant violation may constitute irreparable harm in itself. The breach of the covenant as a “social contract” among homeowners is enough — and, in the court's words, that holds “even where the harm is ‘largely aesthetic,’ and stops short of diminishing use and enjoyment.”
Accommodation facts must be put to the Magistrate. Medical and accommodation material not presented below could not be raised for the first time on exceptions, under Court of Chancery Rule 144(e). An owner who wants a disability defence considered has to plead and prove it in the first proceeding.
Fees against the Commission were denied
The defendants who won asked for their fees and did not get them. The Fair Housing Act is remedial and its fee provision runs to a prevailing plaintiff, so a prevailing defendant must clear a much higher bar. Conclusory assertions of improper purpose were not enough, and the very novelty of the legal question cut against a fee award.
What it changes for Delaware associations and neighbours
An enforcement suit is not a fair-housing risk in itself. Before this decision, a board facing a mid-litigation accommodation claim had to weigh whether pressing on exposed it to a discrimination action. In Delaware, on this authority, filing and prosecuting a covenant case is protected petitioning activity.
That protection is about the lawsuit, not about the decision. Noerr-Pennington shields the act of litigating. It does not immunise the board's underlying conduct — a refusal to grant an accommodation, a selective approval, a fine imposed because of a protected characteristic. Those remain squarely within the Fair Housing Act, and the distinction is the whole of it. Reading this case as a general fair-housing shield would be a serious error.
The sham exception has a live trigger. The reason it failed here was that the covenant had already been held enforceable. An association litigating a restriction that is unenforceable, or enforcing one only against a person who has asked for an accommodation, is in a materially different position.
Forum still decides the case. Injunctive relief — on either side — is Chancery's. An accommodation claim seeking to override a recorded restriction has to be brought there. Our Delaware dispute resolution page sets out the split between the two trial courts, which in this case disposed of half the claim before anyone reached the merits.
The practical sequence for a board
Where an owner raises a disability accommodation against an architectural or fence restriction, this pair of decisions leaves the interactive obligation intact and the litigation protected. The order of operations that follows from them is: engage the accommodation request on its merits and document the engagement; keep the enforcement decision and the accommodation decision on separate records; and understand that pressing the covenant case is lawful even while the accommodation question is open.
What to watch next
This is a Superior Court decision, and it is the first of its kind in Delaware — there is no appellate authority on the point. A Delaware Supreme Court, or a Chancery, treatment of Noerr-Pennington in a fair-housing setting would be the thing that settles it, and none exists yet.
The fee ruling also leaves the Commission free to bring the same theory again without cost consequences, which makes a second test more likely rather than less.
Related Delaware HOA Topics
- 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 ↩
- Delaware Human and Civil Rights Commission ex rel. Cahill v. Welch — opinion on defendants' fee application (Del. Super. Oct. 9, 2025) (Miller, J.) ↩
- Yu v. Cahill, C.A. No. 2022-0014-SEM (MTZ), Order Regarding Exceptions (Del. Ch. Jan. 21, 2026) (Zurn, V.C.) ↩
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