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.

1. Pleasant Hill Homeowners Association, Inc. v. Quillen, C.A. No. 2023-1091-SEM, Final Post-Trial Report (Del. Ch. Jan. 3, 2025) (Molina, Sr. Mag.) ↩