SUPERIOR COURT
OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
July 27, 2016
John W. Paradee, Esquire Richard E. Berl, Jr., Esquire
Baird, Mandalas & Brockstedt Berl & Feinberg, LLP
6 South State Street 34382 Carpenter’s Way
Dover, DE 19901 Lewes, DE 19958
RE: Bethany Marina Townhouses Phase II
Condominium, Inc. v. BMIG, LLC,
C.A. No: S15C-01-019 ESB
Dear Counsel:
This is my decision on the Motion for Summary Judgment filed by Bethany
Marina Townhouses Phase II Condominium, Inc. (the “Association”), and the Motion
for Partial Summary Judgment filed by BMIG, LLC in this dispute over (1) unbuilt
condominium units owned by BMIG, and (2) unpaid condominium fees for boat slips
owned by BMIG. The unbuilt units at the center of this dispute are 51-53, 60-64, and
112-114.
The Bethany Marina Townhouses Phase II Condominium (“Bethany Marina
II”) was planned to be an expandable 77-unit condominium on 10.57 acres on
White’s Creek in Ocean View, Delaware. The initial condominium declaration
submitted the entire 10.57 acre parcel to the condominium regime, but excepted from
it “the parcels of land required to build the physical additional buildings consisting
of seventy-seven (77) additional units...” The submission of “built units” to the
condominium regime was accomplished by preparing an addendum to the declaration
and declaration plan submitting the entire 10.57 acre parcel and once again excepting
the “parcels of land required to build the proposed additional buildings...” The sixth
amendment to the declaration submitted the entire 10.57 acre parcel of land to the
condominium regime and stated the following:
Excepting thereout and therefrom the parcels of land required to
build the proposed additional buildings consisting of nineteen (19)
additional units as shown on the Declaration Plan recorded among the
Land Records of Sussex County, Delaware and identified as follows:
Units 51 through 53, Units 60 through 72 and Units 112-114, inclusive.
And also excepting thereout the “pumping station,” “pump
house,” “pool,” “pool house,” and “storm water management pond” as
shown on said Declaration Plan.
The built and unbuilt units are not described by a metes and bounds
description, but they are shown on the declaration plans. BMIG obtained a deed on
March 23, 2009, conveying to it all of the original developer’s interest and rights in
Bethany Marina II and all lands that were not submitted to the Bethany Marina II
condominium regime.
The declaration gave the developer the right to expand Bethany Marina II by
giving it the right to annex, to be exercised prior to August 29, 2005, the land and
improvements constituting the property of Bethany Marina II. This was later
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extended to August 29, 2010, by an amendment to the declaration. BMIG did nothing
until June of 2014 when it started work on Unit 53. Construction came to a halt when
the Association’s attorney told BMIG that the time for construction had expired. This
litigation followed.
The Unbuilt Units1
BMIG does not dispute that the time for submitting its lands to the Bethany
Marina II condominium regime has passed. Instead, BMIG argues that its lands were
never submitted to, and are not bound by, the Bethany Marina II condominium
regime. Thus, according to BMIG’s reasoning, it is not subject to any time limits for
construction set forth in the Bethany Marina II condominium documents. I agree.
That is exactly what the sixth amendment provides. It clearly excepted from the
Bethany Marina II condominium regime the parcels of land required to build units 51-
53, 60-72, and 112-114. It also excepted from the Bethany Marina II condominium
regime the pumping station, pump house, pool, pool house and stormwater
management pond. The Association argues that BMIG’s lands are not excepted from
the Bethany Marina II condominium regime because it is not possible to determine
where BMIG’s lands are located because they are not described with a metes and
1
Including the pumping station, pump house, pool, pool house and stormwater
management pond.
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bounds description. I disagree. While there is no metes and bounds description,
BMIG’s lands are shown on the declaration plans in sufficient detail to determine
where they are located. The Association also argues that BMIG was divested of its
lands because the developer only excepted the lands “required to build” the remaining
unbuilt units. The Association reasons that since the time for annexing additional
lands for built units has expired, that there are no lands “required to build” the
remaining units. I disagree. The Bethany Marina II condominium documents simply
do not provide for this event. The sixth amendment does except the lands required
to build units 51-53, 60-72, and 112-114. The condominium documents never
address what is to happen with the excepted lands if they are not annexed in time.
However, the condominium documents do provide that for any lands to be annexed
into the Bethany Marina II condominium regime that an amendment to the declaration
must be prepared and recorded authorizing such annexation. That was never done for
these lands. Thus, BMIG owns the lands required to build units 51-53, 60-64, 112-
114, and the pumping station, pump house, pool, pool house, and stormwater
management free of the Bethany Marina II condominium documents.
The Easement
BMIG needs access to its lands in order to construct improvements on them.
BMIG did acquire the following easement from the original developer:
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GRANT OF EASEMENT
The Grantor does hereby reserve unto itself an easement to
construct fourteen (14) buildings and the remaining portion of the first
building as delineated on the said Declaration Plan, and all of the
necessary parking lots, walks and other appurtenances requisite to
service some or all of said fourteen (14) buildings and the remaining
portion of the first building and to provide for the necessary ingress and
egress to said building.2
The Association argues that the easement has lapsed because the time limit for
constructing additional buildings has passed. BMIG argues that the easement itself
contains no such limitation. “The terms of an easement are often critical in
determining its scope, as the language of the easement is the primary guide for the
courts.”3
The easement does grant BMIG the right to construct 14 buildings on the
property and all of the necessary parking lots, walks and other appurtenances
requisite to service the 14 buildings. The easement itself has no time limitation for
construction. Indeed, this easement, by its terms, continues during the existence of
the Bethany Marina II condominium. While the other Bethany Marina II
condominium documents do have a time limitation for construction, I have concluded
that BMIG’s unbuilt units are not burdened by that time limitation. Thus, I conclude
2
The easement also provides that it shall be perpetual during the continued existence of
the Bethany Marina II condominium.
3
Green v. Templin, 2010 WL 2734147, at *10 (Del. Ch. July 2, 2010).
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that the plain and unambiguous language of this easement gives to BMIG the
necessary access across the other lands of the Bethany Marina II condominium to
construct its units.
The Assessments for Boat Slips
BMIG purchased 11 boat slips when it acquired its interest in Bethany Marina
II. The boat slips are part of the condominium regime and subject to assessments.
The Association and BMIG were involved in litigation in 2011 involving a dispute
over assessments for the 11 boat slips that the Association was trying to collect from
BMIG. The Association and BMIG resolved their dispute by executing a Settlement
Agreement and Mutual Release. In addition to agreeing to pay the Association
$21,760.00 for assessments for boat slips, BMIG agreed to, among other things, the
following:
Respondent BMIG, LLC agrees to pay all future assessments in
a timely manner.
Respondent BMIG, LLC confirms and agrees that it is obligated
to pay, and shall pay, any and all future monthly assessments for the
boat slips due and owing under the recorded condominium documents
governing the Bethany Marina Townhouses Phase II Condominium
units.
BMIG’s unpaid assessments for its boat slips was $35,370.41 as of December
31, 2015. BMIG agreed to pay all future assessments for the its boat slips in a timely
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manner. I conclude that BMIG has no defense to the Association’s claim and that
BMIG is indebted to the Association in the amount of $35,370.41, together with all
other assessments for the boat slips that have accrued since December 31, 2015.
Conclusion
The Association’s Motion for Summary Judgment is denied. BMIG’s Motion
for Summary Judgment is granted in part and denied in part as set forth herein.
IT IS SO ORDERED.
Very truly yours,
/s/ E. Scott Bradley
E. Scott Bradley
ESB/sal
oc: Prothonotary
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