Texas Appellate Court decision (February 13, 2015).
A homeowners association („Association“) brought suit against an individual homeowner / member of the Association to enforce restrictive covenants contained in the Association’s governing documents. In the lawsuit, the Association alleged that the homeowner installed windows in his house under construction within the development that were different from the windows that the homeowner had agreed to install and that the Association’s design committee had approved through the Association’s design review and approval process. The trial court issued a judgment granting injunctive relief in favor of the Association and awarded the Association attorney fees. The homeowner appealed the trial court decision.
A primary issue in the appeal concerned a failure by the Association to provide the homeowner with a notice prior to the filing of the Association’s lawsuit of the homeowner’s right to request a hearing before the Association to discuss the violation as is required by the Texas Property Code. The homeowner contended on appeal that the failure to provide the prelitigation notice deprived the trial court of jurisdiction and therefore, the trial court lacked the power to hear the case.
The appellate court ruled that, although the requirement for sending a prelitigation notice is mandatory, it is not jurisdictional. The court noted that a failure to provide the mandatory notice can be cured by a defendant timely requesting an abatement of the lawsuit to allow for providing the required notice before the suit could continue. The homeowner is this case did not request an abatement and therefore was deemed to have waived the requirement for the prelitigation notice. Thus, the trial court had the power to hear the case and did not commit reversible error by granting the injunctive relief that required the homeowner to remove the unapproved windows that were not in accordance with the community’s guidelines and install the windows that were in compliance with the plans that had been approved by the Association.
The appellate court also addressed the issue ofthe need to have suffered „irreparable injury“ for the granting of injunctive relief.The homeowner contended that the trial court abused its discretion by granting a permanent injunction because the Association had an adequate remedy at law in the form of money damages or the imposition of a fine for the homeowner’s violation of the Association’s governing documents and therefore, the Association did not suffer the „irreparable injury“ necessary to obtain an injunction.
The appellate court ruled that inhomeowners association restrictive-covenant cases there is an exception to the general rule which provides that when a substantial breach of a covenant has been shown, there is no requirement for proving a particular amount of damages orirreparable injury . The court stated that a decision to enforce a restrictive covenant against a homeowner requires a weighing of the equities of the owner that has violated a covenant against the equities favoring all the other owners who had acquired their properties on the strength of the restriction.The court further stated that a judgment for injunctive relief for the violation of restrictive covenants arises out of a balancing of equities or of relative hardships. Thus, the fact that the enforcement of the restrictions might cause an owner greater injury does not mean that an injunction would not be appropriate. Finally, the court stated that, „A disproportion between the harm the injunctive relief causes and the benefit it produces must be of considerable magnitude to justify a refusal to enforce the restrictions.“
See case decision: Dr._Saung_Zin_Park_v._Escale