An important responsibility of homeowners association directors is the enforcement of the homeowners associations governing documents, especially the CC&Rs and operating rules. When the directors become aware of violations, they must make decisions regarding whether, how and to what extent the violation will be addressed by the board. When considering a course of action relative to a specific violation, association directors should consider the nature and extent of the violation, past violations involving the same people; costs that will be incurred in connection with enforcement action; the impact of their action, or lack of action, on future enforcement efforts; and, if disputed, the chances of success. Clearly a minor violation like having burnt out light over a garage door should not be treated the same way as a more serious violation like constructing an improvement that alters the exterior of an owners house without required HOA approval.
When the less costly enforcement methods, such as warning letters and/or imposition of fines or suspension of privileges do not result in compliance, it may be necessary to seek enforcement of an associations governing documents through a court proceeding seeking injunctive relief. Such a proceeding can be filed by either the homeowners association as an entity, or by the individual members of the association. Court actions for injunctive relief that are filed by homeowners seek to compel either the associations board of directors, or other homeowners, to take certain action.
Injunctions issued by a court can either direct a person to take a particular action (a mandatory injunction), or order them to stop doing something (a prohibitory injunction). After a court has issued an injunction that directs certain action, the injunction can be enforced by the court that issued the injunction by holding the violator in contempt of the order and/or by ordering the party to pay damages or sanctions for failure to follow the courts order. The process of relief through injunctions typically involves the following three stages:
a. Issuance of a Temporary Restraining Order– a temporary restraining order is a short-term temporary order that is issued to preserve the status quo pending a full hearing. After notice has been given to the party against whom the restraining order is sought, and upon a proper showing that is usually presented to the court in the form of written declarations under penalty of perjury, a court may issue a temporary restraining order to bring an immediate halt to the challenged conduct until such time as the court can conduct a full hearing on the matter. If the temporary restraining order is issued, the court will schedule a full hearing on another date when both sides can fully present their positon for or against the issuance of the requested injunctive relief.
b. Issuance of Preliminary Injunction– a preliminary injunction is also issued for a limited duration, but it lasts longer than a temporary restraining order and requires a greater showing or a court to issue it. The hearing for a preliminary injunction generally takes place within 2 to 4 weeks following the issuance of a temporary restraining order and a court will only issue the preliminary injunction if the party requesting it sufficiently convinces the court that it is likely to prevail on its claims at the time of trial. If issued, the preliminary injunction then enjoins the conduct in question from the date of issuance until a full trial of the issues involved in the case, or until the court enters a subsequent order that dissolves the injunction.
c. Permanent Injunction- a permanent injunction will only be issued by a court following a full trial where both sides present evidence supporting their respective positions on the matter. If the permanent injunction is issued, the order will direct a party to permanently engage in certain conduct. A subsequent violation of a permanent injunction can result in a contempt citation by the court which could be punished by the imposition of a fine and/or a jail sentence.
A decision to file a legal action that seeks an injunction relating to the enforcement of an associations governing documents should be made by the associations board of directors acting collectively after considering the relevant facts and consulting with legal counsel. When considering the relevant facts, in addition to considering the conduct that the directors are seeking to enjoin, it is wise for the associations directors to give consideration to the various defenses that could possibly be raised in response to the action that is being considered. An objective evaluation of this information, with guidance from legal counsel, will enable the associations directors to make an informed decision on the appropriate course of action to take and the likelihood of successfully obtaining an injunction.