When a homeowners association or its homeowners need to enforce a covenant that is contained in the association’s governing documents monetary relief in the form of damages will not provide the necessary relief because most violations of governing documents are of a continuing nature. In such a situation the appropriate relief to be sought from the court is referred to as “injunctive relief.” Injunctive relief is sought from a court to bar or prevent the offending party from violating the covenant in question, or to prevent some other conduct. An action seeking injunctive relief may be filed by either the homeowners association or by individual homeowners.
If the injunctive relief that is necessary is intended to direct the offending party to perform a particular act, such as removing an illegally constructed structure, a “mandatory injunction” is requested. If a mandatory injunction is ordered by a court and the defendant fails to perform the mandated act within a certain period of time, the defendant may also be held liable for damages. In extreme situations where the defendant refuses to comply, or in cases of serious danger, an association may need to go even further than a mandatory injunction and seek an order permitting it to enter the property to correct the condition at the owner’s expense.
Where equitable relief is sought to prevent continued violations of an association’s governing documents, proof of actual or substantial injury is not essential– all that is necessary to entitle the plaintiff to relief is the establishment of a violation that is continuing such as the violation of specific provisions of the association’s CC&R’s. In some instances, a party may need to seek a temporary restraining order, or a preliminary injunction, or both, as temporary relief while their action for permanent injunctive relief is pending in order to prevent waste, avoid irreparable injury, or avoid rendering the court’s ultimate judgment ineffectual.
Notwithstanding the forgoing, there are various state and federal statutes that limit an association’s authority to enforce its covenants. Such statutes typically involve governmentally protected activities that may be violations of an association’s governing documents such as the flying of the American flag, or the installation of solar panels, or drought resistant landscaping, or accommodations that are necessary for disabled persons. Additionally, an association’s governing documents may contain procedural requirements or other limitations that may have to be complied with before an action to enforce the governing documents can be filed. Prior to taking action to enforce provisions contained in their governing documents, an association should confirm that the activity that is being challenged is not a protected activity and confirm that internal requirements for the filing of the action have been complied with.
When a party applies to a court for injunctive relief they must file a complaint seeking the required relief in the court within their jurisdiction. If interim remedies such as a temporary restraining order and/or preliminary injunction are being sought, the complaint must be accompanied by additional applications, declarations and points and authorities which provide the court with satisfactory evidence to show that there are property grounds for the issuance of the requested relief. Additionally, the grant of temporary injunctive relief generally requires the posting of a bond in an amount that is set by the court when the matter is heard. The issuance of such a bond by a bonding company has a cost and it often requires a guaranty by the person seeking the bond against loss if payment on the bond is required.
The process of obtaining injunctive relief necessitates the assistance of an attorney to prepare and file the numerous documents that are required, attend the court hearings, and deal with opposing parties and their legal representatives. This makes the process quite costly and is a good incentive for both sides to try to resolve the issues through alternative dispute resolution mechanisms– which may be a prerequisite to filing a court action that is mandated by the association’s governing documents, or state statutes. Exceptions may exist when there is a need for temporary relief to correct a violation and preserve the status quo so that an ultimate victory on the merits is not fruitless.
Because enforcement litigation is expensive, homeowners associations should strive to resolve issues informally and file formal court actions only in those cases that can’t be resolved informally and are appropriate for resolution in the courts. The decision whether or not to institute litigation to enforce the governing documents is generally a matter of business judgment that should be evaluated and decided by the association’s board of directors. Even if the association has been informed by legal counsel that it is very likely to prevail in such an action, the board is entitled to consider other factors, such as the costs and benefits to be derived from the action, in deciding whether to institute enforcement litigation.