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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 5871
Experience:  28 years of experience in General Practice, Real Estate Law and Estate Law.
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MY upstairs neighbor has installed tile floors even though

Customer Question

MY upstairs neighbor has installed tile floors even though the CC&Rs direct that upstairs units directly over another unit have to have wall to wall carpeting except for bathroom and kitchen. I took the issue to the board. They have tried to correct the situation but thus far have been unsuccessful. I have been dealing with this issue for about six months and have decided to seek an injunction in court.Any advice?Paul.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 1 year ago.

Welcome to JA and thank you for your question Paul.

I am sorry that your board is refusing to take action. Give me a moment to put together links that will assist you in this type of matter.

Expert:  Attyadvisor replied 1 year ago.

In California the Davis Stirling Act is the law that governs all common interest communities. This is the link for the Act http://www.davis-stirling.com/MainIndex/DavisStirlingAct/tabid/427/Default.aspx

When a board fails to enforce it’s CC&R’s they have breached their “Duty to Enforce.

Associations can be held liable for their failure to enforce the CC&Rs (see CC&Rs Defined). Owners may sue the association for damages and an injunction to compel the association to enforce its documents. (Posey v. Leavitt.) Boards can enforce restrictions through monetary penalties, suspension of privileges or filing a lawsuit for injunctive relief.” http://www.davis-stirling.com/DutytoEnforce/tabid/1238/Default.aspx

You are correct the property path would be to filing a lawsuit for an injunction.

Injunctive & Equitable Relief

CC&Rs may be enforced by proceedings in equity or law. A party damaged by a violation of the CC&Rs may seek money damages. Under well-accepted principles of condominium law, a homeowner can sue the association for damagesa nd an injunction to compel the association to enforce the provisions of the declaration.(Cheev. Amanda Goldt.)

“Injunctive Relief. 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 equitable servitudes (CC&Rs). Following are the stages of relief sought:

  1. Temporary Restraining Order (TRO). A temporary order issued by the court to stop all activity so as to maintain the status quo. For example, an owner starts construction without approval by the HOA. The association can go into court on an ex parte basis (24-hours 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 normally held within two to four weeks. (TROs can also be issued in harassment cases.)
  2. 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 (violating height restrictions, violating setback requirements, etc.), the judge can order the owner to cease all construction until the parties can fully litigate the matter.
  3. Permanent Injunction. Once the parties have put on their case, either to the judge (a "bench trial") or to a jury, a permanent injunction can be issued against the owner permanently 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.

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 discretion of the court. They include the power to grant injunctions and specific performance. Specific performance requires a party to perform a contract.

Prohibitory vs Mandatory. 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. (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 mandatory injunction but in a proper case it is never denied. (Allen v. Stowell (1905) 145 Cal. 666, 669.)

Small Claims Court. The egislature has given limited authority to small claims courts to grant injunctive relief when it comes to common interest developments.”

http://www.davis-stirling.com/InjunctiveRelief/tabid/2648/Default.aspx

These links are for informational purposes http://www.nolo.com/legal-encyclopedia/can-homeowners-make-the-hoa-enforce-rule.html

http://www.ehow.com/how_8608319_file-injunction-california.html

This is a sample complaint for an injunction http://www.kinseylaw.com/attyserv/civil/complaints/injunction.html

More sample forms http://www.uslegalforms.com/us/US-01130BG.htm

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I may receive credit for my work. Thank you for using JA!

Expert:  Attyadvisor replied 1 year ago.

Paul were you able to see my response? There were some issues with the site earlier today. I closed your duplicate question so you would not be charged. Thank you.