Delaware: a non-waiver clause means an HOA must have “totally abandoned” enforcement to lose it
Delaware: a non-waiver clause means an HOA must have “totally abandoned” enforcement to lose it
2026-07-31 · Delaware · Courts
The most common defence to a Delaware covenant-enforcement action is “you have not enforced it against everyone else.” Where the declaration contains a non-waiver clause, the Court of Chancery has now restated exactly what that defence requires: violations so pervasive that the association's tolerance amounts to a “total and absolute abandonment” of the right to enforce.
Pleasant Hill Homeowners Association, Inc. v. Quillen, C.A. No. 2023-1091-SEM, was decided by Senior Magistrate in Chancery Selena E. Molina in a final post-trial report on January 3, 2025.1
What happened
Pleasant Hill is a 90-home community in the Camden-Wyoming area. Owners installed a fence taller than the four-foot limit in the recorded restrictions. They defended on two grounds: waiver, pointing to other alleged violations in the community, and arbitrary and capricious enforcement.
A height limit is not an architectural-review covenant
The court's first move was to classify the restriction, and it matters more than it sounds.
A fence height limit is a basic deed restriction — a fixed, objective standard. It is therefore interpreted as a matter of ordinary contract interpretation, not under the separate Delaware line of cases governing architectural-review covenants, where the question is whether a board exercised discretion reasonably.
The distinction cuts both ways for boards. A numeric limit is easier to enforce because there is nothing to second-guess. But it is also the only thing the board can enforce: the court noted that Pleasant Hill's belief that its declaration required pre-approval applications for all exterior alterations was not supported by the document. A board cannot read an architectural-review regime into a declaration that contains only specific restrictions.
The non-waiver clause and what it does to the waiver defence
Non-waiver clauses are enforceable contractual rights in Delaware, and their effect on the waiver defence is dramatic.
Without one, an association's pattern of non-enforcement is ordinary evidence that the restriction has been abandoned. With one, the challenger must show the violations are pervasive and that the association's tolerance reflects a total and absolute abandonment of its enforcement right.
The court put the corollary plainly: “prior failure to enforce in good faith does not preclude future enforcement of the same restrictive covenant.” A board that has been lax, and then decides to start enforcing, has not thereby lost the covenant.
That is a meaningful protection for the very large number of Delaware communities whose enforcement history is uneven — which, on the evidence reaching the state's Common Interest Community Ombudsperson, is most of them. It is also a reason to read your own declaration: whether it contains a non-waiver clause determines which of two very different legal tests an owner has to meet.
Why the arbitrary-and-capricious defence failed
Consistent board practice defeated it. Pleasant Hill had denied a six-foot application and approved a four-foot fence with a one-foot topper. A board that applies the same rule to the same facts is not acting capriciously, even where owners disagree with the rule.
The evidentiary lesson is that the association's own decision log was the winning exhibit. Records of applications received, approved and denied — with reasons — are what convert an enforcement decision into a defensible one.
Irreparable harm, again presumed
The court held that irreparable harm “is essentially presumed” in deed-restriction cases, on the “social contract” rationale from Slaughter v. Rotan. That reasoning has now been restated in Delaware repeatedly, including in the Boulder Brook fence litigation, where Chancery held it holds even where the harm is largely aesthetic.
The practical consequence is that a Delaware association seeking an injunction on a covenant does not have to prove damage to property values. The breach is the harm.
A permanent injunction issued to remove the fence or bring it into compliance. Costs went to the association under Rule 54(d). No fees were sought — the opinion records that the association incurred none.
What it changes for Delaware boards and owners
For boards. Find out whether your declaration has a non-waiver clause before you assess your exposure on selective-enforcement grounds; it is the difference between a routine defence and a nearly insurmountable one. Do not assert pre-approval authority the document does not give you. And keep the application log.
For owners. Pointing at neighbours is close to useless against a non-waiver clause. The defences with actual traction in Delaware are that the restriction is ambiguous (in which case it is construed narrowly, against the association), that it rests on purely subjective criteria, or that the board departed from its own consistent practice. Our Delaware fence and exterior page sets out how those restrictions are written and read.
What to watch next
This is a Magistrate's final post-trial report and it was not excepted to a Vice Chancellor, so it stands as decided. It is consistent with the broader Delaware line, and nothing since has narrowed it.
The unresolved edge is what “pervasive” means as a number. No Delaware decision has quantified how many tolerated violations in a 90-home community would establish total abandonment, and until one does the defence remains available in principle and very hard to run in practice.
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