Opinion
C.A. No. 16633.
Date Submitted: June 16, 1999.
Date Decided: June 30, 1999. Date Revised: July 13, 1999.
Joseph J. Rhoades, Esquire and W. Christopher Componovo, Esquire, of the LAW OFFICE OF JOSEPH J. RHOADES, Wilmington, Delaware, Attorneys for Plaintiffs.
John J. O'Brien, Esquire, Wilmington, Delaware, Attorney for Defendants.
Thomas D. Whittington, Jr., Esquire and Dennis M. McBride, Esquire, of WHITTINGTON AULGUR, Wilmington, Delaware, Attorneys for the Intervening Defendant.
MEMORANDUM OPINION
The simple answer to Tavern's motion for reargument is that I considered and rejected each of the arguments Tavern raised when I decided the motion to dismiss. I relied only on the Statute of Frauds defense in deciding the motion because it was the only clear basis to support Tavern's position.
First, I was and am persuaded that, if the Statute of Frauds did not preclude the claim to enforce Mr. Van's oral representations limiting the future use of the property, the complaint makes adequate allegations of irreparable harm. The fact that the use proscribed by an equitable servitude neither involves illegal conduct nor amounts to a nuisance at law is hardly a ground to deny enforcement of the servitude by injunction. On the contrary, restrictive covenants in deeds limiting the use of property are, generally, regarded as valid and will be specifically enforced as may be reasonably necessary to accomplish their purpose. Dawejko v. Grunewald, Del.Ch., C.A. No. 8580, Jacobs, V.C., mem.op.. at 10 (Dec. 27, 1988); 40 A.L.R.3d 864, 870 (1971).
Second, it is not clear to me that, assuming again that the servitude was enforceable, the plaintiffs were first required to appear before the ABCC to protest the issuance of a liquor license. The defendants, against whom the servitude was sought to be enforced, were not parties to that proceeding. Moreover, I am not persuaded that the plaintiffs' undoubted right to appear before the ABCC could have afforded them an adequate legal remedy with regard to the enforcement of the claimed servitude. While the ABCC could have considered Mr. Van's alleged representations in reaching its decision, it has no power to adjudicate the disputed claims about that alleged servitude.
Finally, I was and am unwilling to conclude that Tavern's status as a "bona fide lessee for value" is of conclusive consequence. In other words, if I had found that the equitable servitude claimed to have arisen from Mr. Van's representations was enforceable against the owners of the property, Tavern's status as lessee would not necessarily have precluded the entry of an injunction against Tavern's operation of a bar on the premises. Tavern relies on Scureman v. Judge, Del.Ch., 626 A.2d 5, 13 (1992) and Jeffreys v. Exten, Del.Ch., C.A. No. 1259-S. Hartnett, V.C., let. op. at 5 (Jan. 11, 1988). Scureman concerns a bona fide purchaser for value and is completely distinguishable for that reason. Jeffreys mentions in passing that an interested party was a "bona fide lessee for value" but does not address the legal or equitable consequence of this designation. In fact, the next paragraph of the opinion describes the sale, not the lease, of the real property in question to that party. Thus, neither case provides any support for the position argued by Tavern that its status as lessee precluded the entry of equitable relief affecting its use of the property in question here. This is not to say that Tavern had no interest in the litigation or that its rights would not have weighed in the determination of whether or not to issue an injunction. On the contrary, I allowed Tavern to intervene in the case and recognize that its interest in the property — represented by its lease and investments in its business operations — were entitled to some consideration and protection had I reached the point of considering the