Pacific Reserve Studies
Restraining Orders - Injunctive, and Equitable Relief
CC&Rs may be enforced by proceedings in equity or law an owner damaged by a violation of the CC&Rs may seek money damages or can sue the association for damages and an injunction to compel the association to enforce the provisions of the CC&Rs Injunctions may be mandatory (requiring a person to do something) or prohibitory (stopping them doing something) Parties who violate an injunction face civil or criminal contempt of court proceedings and may be ordered to pay damages or sanctions for failing to follow the court's order. Injunctive relief is frequently sought in the enforcement of CC&Rs Following are the stages of relief available:
- Temporary Restraining Order (TRO). A temporary order issued by a court to stop all activity so as to maintain the status quo For example, an owner starts construction without approval by the association. The association can go into court on an ex parte basis (24-hour notice) for a TRO to temporarily stop construction until the parties can more fully explain their positions to the judge at a hearing on the matter set by the court. A hearing for preliminary injunction is normally held within two to four weeks.
- Preliminary Injunction (PI). Following the issuance of a TRO, the court sets a hearing for a preliminary injunction which is another temporary order but of longer duration than a TRO The court will issue a PI if a party can show that it will likely succeed at the time of trial. For example, if the association can show that the owner is in violation of the CC&Rs and architectural standards, the judge can order the owner to cease all construction until the parties can fully litigate the matter.
- Permanent Injunction. Once the parties have argued their case, a permanent injunction can be issued against the owner permanently preventing him or her from building in violation of the governing documents. If a party violates an injunction whether it be a TRO, preliminary injunction, or permanent injunction the party can be held in contempt of court which is punishable by fines and/or a jail sentence.
Equitable relief is similar in that a court can require parties to perform certain acts or specifically perform contract Equitable remedies are distinguished from legal remedies (money damages) and are at the discretion of the court. They include the power to grant injunctions and specific performance. Specific performance requires a party to perform a contract.
The general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.
The legislature has given very limited authority to small claims courts to grant injunctive relief.
Pacific Reserve Studies