The Quail Village Homeowners Association claims a residence at 742 Raven Circle in Camden-Wyoming is in violation of deed restrictions. (Delaware State News/Craig Anderson)
CAMDEN-WYOMING — Chancery Court on Thursday opted not to find in favor of a homeowners association attempting to stop a property owner from housing feral cats in an outside building.
The Quail Village Homeowners Association is suing Janice Rossell. She earlier testified she’s had as many as 40 cats on her property at 742 Raven Circle and recently had 28 domesticated and feral felines staying there.
In a 15-page decision, Master of Chancery Kim Ayvazian dismissed the association’s request for a summary judgment and recommended the matter for trial.
No date had been set as of Friday.
The HOA claims Ms. Rossell — who has lived at the property since 2004 — is violating deed restrictions by failing to receive approval from its Architectural Committee before erecting the structure in question, the opinion said. Also, her “activities have created a nuisance and a dangerous or offensive condition in violation of … deed restrictions.”
According to Ms. Rossell, however, the HOA has failed to enforce the approval standard for several other properties in the Quail Village neighborhood.
Also, the resident believes that taking in the cats to be spayed and neutered at her own expense is curbing their population for the entire neighborhood.
The HOA filed the complaint on Dec. 4, 2013. A mandatory mediation hearing was unsuccessful, according to the Master of Chancery. A trial originally scheduled for October 2015 was postponed until Sept. 7, 2016, then continued at the quest of counsel.
According to the order, the HOA said there are 12 Quail Village residents prepared to testify against Ms. Rossell’s actions at trial.
Master Chancery Ayvazian initially determined that deed restrictions regarding animals was the key issue since the HOA was not objecting to the appearance or location of Ms. Rossell’s outside structure.
The HOA, however, considers the appearance or location assertion “merely speculative because the Architectural Committee was deprived of the opportunity to either approve or reject Rossell’s plan to build the accessory structure because no plan was ever submitted for its review.”
Since the HOA’s deed restrictions has no fixed standards for architectural review, they are unenforceable according to Delaware law, the decision stated.
Use of structure
Because the court’s reference to the appearance and location of the outside structure was deemed irrelevant to the analysis and “potentially misleading” the final draft report was modified.
Upon further review, the Master Chancery changed language to read “because the HOA also is objecting to Rossell’s alleged use of this structure to house feral cats. Therefore, Quail Village’s separate deed restrictions pertaining to animals must be closely examined.”
Whether Ms. Rossell is using the outside structure to house or shelter any type of cat is in dispute, according to the Master Chancery.
“Even though it is undisputed that the accessory structure has a cat door, I must view this sparse record in a light most favorable to [Ms. Rossell], who testified in her deposition that the cat door is mostly locked and she does not house or shelter cats on a continuous basis in that structure,” Master Chancery Ayvazian maintained.
“Because this is a genuine issue of material fact, summary judgment is no appropriate here.”
There’s also question on how to distinguish between domesticated and non-domesticated cats, according to the ruling, and “The deed restriction does not define the term ‘domesticated.’ “