CC&Rs may be enforced by proceedings in equity or law. A party damaged by a violation of the CC&Rs may seek monetary damages. Under well-accepted principles of condominium law, a homeowner can sue the association for damages and an injunction to compel the association to enforce the declaration's provisions. (Chee v. Amanda Goldt.)
Injunctive Relief
Injunctive relief may be mandatory (requiring a person to do something) or prohibitory (stopping them from doing something). (Code Civ. Proc § 525.) 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 equitable servitudes (CC&Rs). Following are the stages of relief sought:
Temporary Restraining Order (TRO). To maintain the status quo, courts can issue a temporary order. For example, an owner starts construction without approval by the HOA. 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 a preliminary injunction is usually held within two to four weeks. (TROs and protective orders can also be issued in cases of harassment and threats of violence.)
Preliminary Injunction (PI). Following the issuance of a TRO, the court sets a hearing for a preliminary injunction, another temporary order that has a longer duration than a TRO. The court will issue a preliminary injunction if a party can show that it will likely succeed at the time of trial. For example, the owner violated the CC&R and Architectural height restrictions and setback requirements (Ticor Title v. Rancho Santa Fe; the assn required a 50-foot setback when CC&Rs established 20-foot setbacks; Morgan v. Veach: structures built into the setbacks ordered removed),
Permanent Injunction. Once the parties present their case to the judge (a "bench trial") or a jury, a permanent injunction can be issued against the owner, preventing him from building in violation of the governing documents. If a party violates an injunction, whether it be a TRO, preliminary injunction, or permanent injunction, that party can be held in contempt of court, which is punishable by fines and a jail sentence.
Prohibitory vs Mandatory Injunctions. 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 the performance of an affirmative act that changes the parties' position. (Oiye v. Fox, supra, 211 Cal.App.4th at p. 1048.) Although a preliminary mandatory injunction is subject to stricter review on appeal (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493), the principles upon which mandatory and prohibitory injunctions are granted do not materially differ. The courts are more reluctant to order a mandatory injunction, but in a proper case, it is never denied. (Allen v. Stowell (1905) 145 Cal. 666, 669.)
Equitable Relief
Equitable relief is similar in that a court can require parties to perform certain acts or specifically perform a contract. Equitable remedies are distinguished from "legal" (money damage) remedies and are at the court's discretion. They include the power to grant injunctions and specific performance. Specific performance requires a party to perform a contract.
Declaratory Relief
A proceeding for declaratory relief can only be properly invoked to “declare rights and not to determine or try issues.” Loomis Fruit Growers’ Assoc. v. California Fruit Exch., 128 Cal. App. 265, 281 (1932). The purpose of a judicial declaration is so that parties may ascertain their rights and act accordingly so as to avoid committing torts and engaging in unnecessary litigation. Babb v. Sup. Ct. (Huntington, 3 Cal. 3d 841, 848 (1971); see Kessloff v. Pearson, 37 Cal. 2d 609, 613 (1951).
Declaratory relief is unnecessary where an adequate remedy exists under some other form of action. Pacific Electric Railway Co. v. Dewey, 95 Cal. App. 2d 69, 71 (1949). While the availability of other relief is not an absolute bar to declaratory relief, it is a significant factor to be considered and may justify a refusal to grant declaratory relief. Herrmann v. Fireman’s Fund Ins. Exch., 127 Cal. App. 2d 560, 566 (1954); General of America Ins. Co. v. Lilly, 258 Cal. App. 2d 465, 471 (1968).
Writ Relief
Writ relief is a discretionary form of appellate relief that allows a party to request a higher court to order a lower court to take or stop taking a specific action. Writs are used in extraordinary circumstances when a party believes they have no other adequate remedy and will suffer irreparable harm if relief is not granted.
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