2026-09-01 · Delaware · Legislation · Did not pass

Delaware came closer than most people realise to overriding HOA covenants on accessory dwelling units. SB 87 was reported favourably out of committee on May 7, 2025 — and then sat on the Senate Ready List for roughly fourteen months without ever being called for a vote. It died at adjournment on June 30, 2026.

The bill's title gives no hint of it. “AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO HOUSING” reads as a supply measure. The covenant-preemption clause is inside the text.¹

The provision, in full

Proposed § 1703(c) would have read:

“Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of any interest in real property, or any covenant, restriction, or condition contained in a deed or declaration under the Unit Property Act, or any rule based thereon that is not in effect on June 30, 2027, is created after June 30, 2027, or is used as the basis for any rule that is created or takes effect after June 30, 2027, which effectively prohibits or unreasonably restricts the construction or use of an ADU on a lot zoned for single-family residential use that otherwise meets the requirement of this section is void and unenforceable.”

What that actually did — and did not do

Read carefully, it is narrower than a flat preemption and sharper than it looks.

Existing covenants were grandfathered. A restriction already in effect on June 30, 2027 would have survived. This was prospective.

But it froze declarations in place going forward. Any covenant created after that date would be void as to ADU prohibitions — and, critically, so would any rule created or taking effect after that date that used an older covenant as its basis. A board with a general architectural covenant from 1998 could not have adopted a new ADU rule under it after June 2027.

It also expressly named declarations under the Unit Property Act, meaning it reached pre-2009 Delaware condominiums as well as newer planned communities.

1. SB 87, 153rd General Assembly — bill record and action history (reported out of committee May 7, 2025 with 5 Favorable; never called for a floor vote) ↩
2. Senate Substitute 2 for SB 23, Housing for Every Delawarean Act — full text (signed July 13, 2026; 85 Del. Laws c. 343; contains no covenant provision) ↩
3. 25 Del. C. ch. 22 — Unit Property Act (the declarations SB 87 would have reached) ↩