MEMORANDUM OPINION

NOBLE, Vice Chancellor

Defendant Carl Mruz ("Mruz") has erected a large three-bay garage with an office (the "Garage") on his lot in a residential neighborhood known as Glen Berne Estates, in Christiana Hundred, New Castle County, Delaware. Lots in Glen Berne Estates, however, are subject to a declaration of restrictions that prohibits structures other than single-family dwellings and "a private garage for not more than two cars." Plaintiffs Glen Berne Civic Association ("GBCA") and Francis A. Tusi ("Tusi"), GBCA's president and a neighbor of Mruz, brought this action seeking, first, a declaration that the Garage violates the restrictive covenant and, second, a mandatory injunction requiring removal or significant modification of the Garage. In this decision following trial, I conclude that the Garage erected by Mruz violates an enforceable restrictive covenant and that requiring removal of the Garage is the appropriate remedy.

I. The Factual Background

Mruz acquired title to Lot 39 in Phase 2 of Glen Berne Estates (311 Glen Berne Drive) (the "Parcel") from Pauline A. Mruz, his mother, who along with her late husband had purchased the Parcel in 1954. Mruz has lived in the single-family dwelling on the Parcel since it was built.

Glen Berne Estates (the "Subdivision") dates back more than half a century. The lots in the second phase of the Subdivision are subject to a declaration made by Walter A. Rothwell, dated March 31, 1949, and recorded on April 25, 1949, in the New Castle County Recorder of Deeds Office in Deed Record A, Volume 49, Page 68 (the "Declaration"). The Declaration (at numbered paragraph 2) sets forth the following restriction (the "Restriction"):

2. No structure shall be erected, altered, placed or permitted to remain on any residential lot other than one detached single family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars.

The deed by which Ms. Mruz acquired her interest in the Parcel recites that it is "SUBJECT also to building line restrictions, easements, utility reservation, etc., as set forth in Deed Record A, Volume 49, Page 68." The record plat for the second phase of the Subdivision also recites: "For restrictions binding the lot shown on this plat, see deed of Walter A. Rothwell Declaration dated April 25, 1949, and of record in the office for the recording of deeds, in and for New Castle County, State of Delaware, in Deed Record A, Volume 49, Page 68."

Tusi and his wife own and reside at Lot 58, also in the second phase of the Subdivision. GBCA is an incorporated neighborhood association. It does not own property in the Subdivision and the Declaration does not expressly allow for enforcement of the restrictions by GBCA or any other juristic entity.

During the summer of 2000, while record title to the Parcel remained in his mother's name, Mruz commenced construction of the Garage adjacent to the existing single-family dwelling on the Parcel. In late August 2000, the president of GBCA sent a certified letter to Ms. Mruz advising her of the Declaration's restriction on garages, informing her that GBCA viewed the Garage under construction as a violation of the Declaration, and asking for a response. Although no response was forthcoming, construction of the Garage came to a halt. Construction subsequently resumed and Tusi, by then the newly-elected president of GBCA, sent in mid-November 2000 another certified letter to Ms. Mruz which, after noting that construction had resumed, threatened legal action. When no productive response was received, GBCA and Tusi filed this action on December 20, 2000. After this action was commenced, Mruz continued with his construction project and completed the Garage.

The Garage, particularly when compared to the other buildings in the Subdivision, is an impressive structure. Built of brick, the Garage has a footprint of 40 feet by 55 feet and a maximum height of 19.5 feet. Three garage doors are available for access. In stark contrast to the Garage, the dwellings in the Subdivision, as was typical of the era of their construction, are, in general, not large, and the Garage conveys the sense that it is as large as many of the dwellings.

The Restriction precludes outbuildings except for two-car detached garages. The Restriction, however, has been violated on a widespread basis through the placement of numerous structures, all of which are substantially smaller than the Garage. For example, many of the lots in the Subdivision have storage or utility sheds. The largest of the other potentially nonconforming outbuildings in the second phase may be found at 105 Admiral Drive, which is roughly three blocks from the Parcel. There, a two-bay garage with an area of 940 square feet (less than half the size of the Garage) was constructed. As far as anyone can recall, neither GBCA nor any of the residents of the Subdivision has ever sought to enforce the Restriction.

II. The Issues

GBCA and Tusi take the position that the Garage clearly violates the plain language of the Declaration and that they are entitled to have it removed. GBCA and Tusi also claim an entitlement to an award of their attorneys' fees based on Mruz's bad faith conduct.

Mruz's first challenges the standing of GBCA to bring this action. He argues that the Declaration, by its terms, limits the class of potential plaintiffs to lot owners in the Subdivision. Because the GBCA is not a lot owner, he concludes, it does not have standing. However, Mruz concedes that Tusi has standing as a lot owner to pursue enforcement of the Restriction.

Mruz's next raises the principal issue which is whether, with the passage of time and the numerous violations of the Restriction, the Restriction may be enforced against Mruz. More specifically, the question presented is: if the Restriction may not be enforced against sheds and other relatively small structures that violate the Restriction, can the Restriction be enforced against an outbuilding that is significantly bigger than the existing non-conforming structures found on other lots? Thus, the concepts of waiver and abandonment are implicated.

In addition, Mruz raises other equitable defenses, such as whether Tusi's right to pursue this action is barred by the doctrine of unclean hands.

III. Analysis

A. Standing

Because the Declaration grants the right to enforce the Restriction against violators to lot owners in the second phase of the Subdivision, Tusi, a lot owner in the same phase as Mruz, has standing to pursue this action. In addition, he has a significant interest in maintaining a limit on the size and nature of the allowed outbuildings, an interest that clearly falls within the zone protected by the Restriction. Thus, as the parties have stipulated, Tusi has standing to enforce the Restriction against Mruz.

B. The Garage Violates the Restriction

General principles of contract construction guide interpretation and application of restrictive covenants "because the legal force of the restrictive covenants that bind [the Subdivision] is contractual in nature." However, because they restrict the "free use of property," restrictive covenants must be strictly construed.

Because the Restriction was duly recorded a half century ago, I find that Mruz is charged with knowledge of its provisions. Even if he was not aware of the Restriction, GBCA provided notice to him of the Restriction shortly after he commenced construction. Moreover, the Restriction, in this context, is not ambiguous.

I find that the Garage violates the Restriction. It is not a garage for two cars; instead, it is a garage for at least three cars with an office and is significantly larger than any structure that could conceivably be considered a two-car garage.

Thus, Tusi has succeeded in demonstrating that Mruz has violated the Restriction through his construction of the Garage.

C. Continuing Enforceability of the Restriction

Mruz, however, directly challenges the continuing vitality of the Restriction. He contends that the extensive violations of the Restriction and the absence of any effort to enforce the Restriction over a period of 50 years require the Court to find that there has been a acquiescence in the violations or an abandonment or waiver of the Restriction.

The terms abandonment and waiver are sometimes used interchangeably and the conduct that leads to a finding of abandonment may frequently support a claim of waiver. Abandonment, which "is difficult to establish," occurs when" all beneficiaries have relinquished . . . their rights to enforce a particular covenant or a general plan of covenants." "Waiver usually involves a failure to object to other violations of the same or similar servitudes such that it would be unfair to allow the claimant to enforce the servitude against the current violation." Thus, the principal difference between the two defenses is that "waiver usually involves failure to object to a particular violation of a servitude under circumstances that lead to the conclusion that the beneficiary is precluded from objecting to different but similar violations." Moreover, extensive waiver can ultimately amount to abandonment of the servitude. In this case, Mruz generally bases his defenses of abandonment and waiver on the same factual considerations.

Small outbuildings (generally less than 200 square feet in area) are located throughout the Subdivision, including the lots in Phase 2. These are primarily utility or storage sheds. of course, some are bigger than others, and they also vary in their states of upkeep. Their presence is so pervasive that any effort to stop the erection of a new shed on one of the few lots which does not have one would likely be fruitless because the right to enforce the Restriction as to such sheds clearly has been waived. In addition, there are other improvements, such as carports, garages, greenhouses, and ornamental wishing wells, some of which are attached to the dwellings and some of which may violate the Restriction. The evidence provides a good sense of the level of violation of the Restriction that has been tolerated by the community. Although there is no "bright" line, the Garage grossly exceeds any accepted community standards and greatly surpasses in size any other outbuilding (or attached improvement) which the lot owners of Phase 2 have allowed to exist.

Because Mruz bears the burdens of proof and persuasion on his affirmative defense of waiver, his effort to avoid the consequences of his violation of the Restriction will only succeed to the extent of the waiver that he can demonstrate. That which has not been waived remains in effect. The conduct of the lot owners in the Subdivision may have resulted in a waiver of the Restriction as to sheds and other similar small improvements, but there is no evidence to suggest a waiver as to a 2,200 square foot, brick, three-car garage. In sum, the gravity of Mruz's violation, as measured in terms of size and heft of the Garage, is so much greater than that of violations associated with the sheds, considered either individually or cumulatively, that waiver of the community's right (including, of course, Tusi's right) to challenge the Garage has not been established. Equitable defenses are frequently fact specific and, thus, their application depends upon the unique circumstances of each case. To find a total and absolute waiver with respect to the size and scope of any outbuilding to be erected in the Subdivision is simply not justified by the facts before me.

Mruz also points to several specific violations of the Restriction that deserve attention, none of which changes my view of how the Restriction may be enforced. For example, on Admiral Drive, also in Phase 2, a large, two-car garage was erected. It is indeed larger (940 square feet) than the other outbuildings placed in the Subdivision. However, it is one isolated instance and still significantly smaller than the Garage. Mruz cannot plausibly contend that a structure less than 1,000 square feet in area allows for construction of a structure of more than 2,000 square feet. Mruz further cites several structures erected on Rothwell Drive in Phase 1 of Glen Berne Estates. Again these are all much smaller than the Garage. Furthermore, they are not within Phase 2. Thus, although subject to a restriction written in the same words, the Rothwell Drive examples do not directly affect enforcement of the separately recorded covenants specifically binding Phase 2, and even if they were within the second phase, their relatively smaller size would not support the argument that Mruz should be allowed to have such a large outbuilding.

In matters of real estate, in particular, certainty is important. It is very easy to conjure up. a set of facts where one cannot be reasonably certain as to the extent of the conduct that would be allowed through some degree of waiver over time. That is a factual question and given the importance of private property rights, some latitude should be granted the landowner. Here, however, the Mruz structure is so out-of-keeping with the neighborhood's character and evolution that it is not reasonable to conclude that the residents of the Subdivision who allowed utility sheds and the other minor violations of the Restriction also understood that they were acquiescing in structures of the scope built by Mruz.

In assessing a claim of abandonment, it is appropriate to consider whether the restrictive covenant, in light of its less than full enforceability due to the cumulative effect of the numerous minor violations that persist, continues to serve a useful purpose. If no useful purpose remains, it may be that the covenant should be deemed abandoned. Here, the primary benefit from the limitation on the size of outbuildings is aesthetic. Those aesthetic considerations are squarely implicated by the sheer size of the Garage when compared, not only with the other outbuildings in the Subdivision, but. also with the dwellings. Thus, I am satisfied that the Restriction, even as its enforceability may be limited in part, continues to serve a proper and useful purpose benefiting the residents of the Subdivision who have not relinquished the Restriction.

In sum, the Restriction continues to confer a reasonable benefit on the Subdivision and Mruz has failed to show that it has been abandoned or waived as to outbuildings as massive as the Garage.

D. Tusi's "Unclean Hands"

Tusi placed a relatively large (12' x 16') utility shed on his lot. Although larger than many of the utility sheds found in the Subdivision, his shed covers an area less than ten percent of the area occupied by the Garage. From these facts, Mruz argues that Tusi is barred from proceeding with this action by the equitable doctrine of unclean hands. While it is axiomatic that "one who seeks equity must do equity" and one who is guilty of a substantial breach of a restrictive covenant may not seek equal equitable relief against another who similarly breaches that restrictive covenant, this principle is not applicable here. Tusi's shed is generally consistent with the other outbuildings that fail to comply strictly with the Restriction. Thus, his conduct falls within that component of the Restriction that has been waived or acquiesced in, and his shed could not have been prohibited. Accordingly, he has not deviated from the norm in a fashion that would allow application of the unclean hands doctrine against him.

E. The Remedy

That the Garage was built in violation of the restrictive covenant has now been established, and Tusi is entitled, under 10 Del. C. Ch. 65, to a declaratory judgment reflecting that conclusion. In addition, Plaintiffs also seek a mandatory injunction requiring that the Garage be removed. The Garage violates the Restriction, and there are no apparent means of achieving the goals of that covenant and, at the same time, allowing the Garage to stand. Mruz was on notice before commencing construction, and was expressly warned during its early stages, that the Garage would violate the Restriction. Thus, it is reasonable to conclude that he went forward with this project at his own risk. On the other hand, I acknowledge the draconian nature of relief requiring demolition of the Garage. Nonetheless, I am convinced that a mandatory injunction requiring removal of the Garage is not only appropriate, but also necessary.

F. Attorneys' Fees

Tusi (along with GBCA) asserts that an award of attorneys' fees is appropriate because of what he alleges to have been Mruz's bad faith conduct. Under the so-called American Rule, each party pays its own legal fees absent a specific basis for shifting that burden. Bad faith, of course, is one of the grounds for fee shifting. Here, however, Mruz's conduct cannot fairly be considered to have been in bad faith. Whether the Restriction had continuing efficacy in light of multiple violations is a reasonable question, certainly not one bordering on the trivial. Therefore, Plaintiffs' application for an award of legal fees is denied. However, Mruz shall pay the other costs associated with this matter.

IV. Conclusion