Nelson v. Russo

Summary

The Delaware Supreme Court held that the Superior Court lacked subject matter jurisdiction over a condominium dispute seeking removal of an addition allegedly encroaching on common-area airspace. The court determined that ejectment could not provide possession of airspace and that the requested removal constituted equitable relief available only through a mandatory injunction in the Court of Chancery. The judgment was reversed and the matter remanded.

Holdings

1. Ejectment is unavailable to recover possession of airspace because airspace is an incorporeal hereditament on which entry cannot be made and of which the sheriff cannot deliver possession.
2. The Superior Court lacked subject matter jurisdiction because the complaint sought equitable relief in the form of a mandatory injunction requiring removal of part of a building.

Questions Presented

1. Whether the Superior Court had subject matter jurisdiction over an action styled as ejectment when the plaintiff sought removal of a structure allegedly encroaching on condominium common-element airspace.
2. Whether ejectment may be used to obtain possession of incorporeal airspace and whether the requested removal of the structure constituted equitable relief available only through a mandatory injunction.

Disposition

reversed_and_remanded