Letter: Clarifying the law of covenants

March 26, 2019

Statements made by planning and zoning, the Doughertys, and their attorney about covenants on a conditional-use application suggest a lack of understanding about the law of covenants.  

The following points  (I am not a lawyer and do not offer this as legal advice):

• A municipality cannot abrogate a covenant, which Mr. Wheatley has confirmed in oral and written statements.  Approving the CU, while creating confusion for the lot owner, would not remove the terms of the covenant that bind the lot owner as clearly specified in the deed that he signed in assuming ownership.  One key restriction:  “no commercial business.”  

• Covenants are contracts, binding to the lot owner.  They “run with the land.”

• Covenants are formed under private law, which governs relationships between individuals.  

• Private laws can only be changed by agreement among those parties similarly bound, a legislature, and the courts.  

As stated by one court, a ruling that is referenced often in state courts nationwide:  “[The covenant is enforceable by any grantee as against any other, upon the theory that there is a mutuality of covenant and consideration, which binds each and gives to each the appropriate remedy.”  See:  Korn v. Campbell, 192 N.Y. 490, 495–96 (1908); see generally 51 A.L.R. 3d 556 (1973) (recognizing Korn as “the leading case on the subject in this country”)

• Municipalities only have authority to make public laws.    

•  If a CU were to be granted, the terms of the covenant are still binding on the lot owner.  A CU does not abrogate those bound obligations.

• If a covenant states that all parties to the covenant must agree on changes in the covenant before that covenant can be changed, then all parties must agree.  A court must approve the agreement before entering the amendment(s) into the county’s records.  The covenant for this and adjoining parcels specifically states that all must be in agreement before the covenant can be changed. 

• Sussex County through its zoning authority has long ago accepted this covenant.  In doing so, the covenant “becomes something more than solemn promises: [it] become[s] law,” as one court has explained. 

• Courts have repeatedly rejected rezoning that creates a small island of property that allows significantly more liberal uses than that of surrounding properties - “solely for the benefit of a particular property owner.”  Piece-meal zoning has been struck down repeatedly because it is seen as undermining “well planned and standardized zoning code,” that a municipality has compromised the common good to benefit one property owner.

• Courts are loath to make any judicial modification or cancellation of privately negotiated property restrictions because “[s]ubstantial uncertainty for property owners as to rights and obligations would ... result ... if courts, at the instance of a suing property owner and over the objection of adjacent property owners, could modify or cancel a ... property restriction,” as one court stated.  That same rationale has been used by courts to look with disfavor on municipalities who modify or cancel private, negotiated property restrictions.

In closing, neither Mr. Dougherty nor his attorney has provided any evidence to verify that he was “duped.”  By not naming the specific individuals, he has hence implicated all involved in this real estate transaction. “Duped” means that fraud was committed, a serious charge subject to federal and state redress.  Yet, Mr. Dougherty has not taken any legal action against those parties he alleges have duped him.  No filing has been made against the Delaware Bar nor the Sussex County Board of Realtors.  No litigation has been initiated against the prior owner.  Indeed, the lot owner has challenged Mr. Dougherty’s assertions in this newspaper.

Whether Mr. Dougherty was “duped” is not a matter for the commission to use in its decision, anyway.  The deed is binding upon him as a purchaser whether he reviewed, read or understood the terms.  The general rule of “constructive notice” applies.  No real estate contract should be signed until the purchaser has reviewed all restrictions and covenants. 

“Ignorantia juris non excusat” (“ignorance of the law excuses not”), or “ignorantia legis neminem excusat” (“ignorance of law excuses no one”), is a core legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of that law’s existence.  

Sussex County Council must honor the covenant, follow the statutory exhortation that covenants are to stand without compromise, validate the purpose of the AR-1 zoning code, and reject this application.  

James D. Spellman


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