Real Estate Law

Have Real Estate Law Questions? Ask a Real Estate Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Real Estate Law

MY upstairs neighbor has installed tile floors even though

Customer Question
the CC&Rs direct that upstairs...
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: 2 years ago.Category: Real Estate Law
Show More
Show Less
Ask Your Own Real Estate Law Question
Answered in 2 minutes by:
1/8/2016
Real Estate Lawyer: Attyadvisor, Attorney replied 2 years ago
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,734
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
Verified

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.

Ask Your Own Real Estate Law Question
Real Estate Lawyer: Attyadvisor, Attorney replied 2 years 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!

Ask Your Own Real Estate Law Question
Real Estate Lawyer: Attyadvisor, Attorney replied 2 years 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.

Ask Your Own Real Estate Law Question
Ask Attyadvisor Your Own Question
Attyadvisor
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,734
7,734 Satisfied Customers
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.

Attyadvisor is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

5,436 satisfied customers

17 years of legal experience including real estate law.

Barrister

Barrister

Lawyer

11,126 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

7,785 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

7,559 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,207 satisfied customers

I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.

Dimitry Esquire

Dimitry Esquire

Attorney

5,526 satisfied customers

JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin

Ely

Ely

Counselor at Law

4,925 satisfied customers

Qualified attorney in private practice including business, family, criminal, and real estate issues.

< Previous | Next >

Related Real Estate Law Questions
Our condominium complex is in need of major repairs. The HOA
Our condominium complex is in need of major repairs. The HOA is getting competitive bids, but they are not being transparent about the process. Information is being leaked to the community about the c… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,385 satisfied customers
My client is being sued by his Homeowner association and
My client is being sued by his Homeowner association and want him to sign a document that will authorized foreclosure. The Annual fees of the association are $250 and they are suing him for $5,000+ He… read more
Attyadvisor
Attyadvisor
Attorney
7,734 satisfied customers
Can a homeowners association deny a homeowner's application
Can a homeowners association deny a homeowner's application to plant trees within his property borders because it has a drainage easement where the trees will be planted? … read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,126 satisfied customers
A homeowner vs HOA. My HOA sent me a letter using a
A homeowner vs HOA. My HOA sent me a letter using a 'hear-say' to accuse "someone in my unit" of HOA rule violation. I prepared a letter of one page asking the HOA not to use 'hear-say' and not to use… read more
TJ, Esq.
TJ, Esq.
Juris Doctor (JD)
11,260 satisfied customers
Can a homeowners' association own land? If so can a
Can a homeowners' association own land? If so can a partnership that currently owns the land transfer it to the HOA? How is it accounted for on the partnership's books? Since the HOA is not a 501(c)(3… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,385 satisfied customers
In condominium association all parts of building and stairs
In condominium association all parts of building and stairs exteriors (aesthetic and structural) have to be maintain by HOA or individual owners? … read more
LegalGems
LegalGems
Juris Doctorate
10,717 satisfied customers
A homeowner in carmel South HOA. Recently, I questioned the
I am Tom Culpepper, a homeowner in carmel South HOA. Recently, I questioned the painting of a home being against our HOA policy by addressing the Board of Directors. They advised they would review and… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Homeowner (me) in dispute with HOA. A tree owned by the HOA
Homeowner (me) in dispute with HOA. A tree owned by the HOA has caused significant damage to my driveway. They acknowledge ownership, but have set a cap on reimbursement for driveway replacement of $5… read more
Attyadvisor
Attyadvisor
Attorney
7,734 satisfied customers
Can the treasury of our homeowners association invest some
Can the treasury of our homeowners association invest some of the money that the association has in CD'S or any other type of investment? … read more
socrateaser
socrateaser
1,031 satisfied customers
Florida HOA. Chapter 720. If an architectural committee
Florida HOA. Chapter 720. If an architectural committee disapproves a site plan for an owner, the owner should have the right to appeal to the board. Should there be an appeal period, such as 14 days,… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I live in and the community is in a homeowners association.
Good morning. I live in Virginia and the community is in a homeowners association. … read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
A homeowner in our association, is requesting contact
A homeowner in our association, is requesting contact information for our board and all contact information for the rest of the homeowners in our association. This sounds illegal, is it? … read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,126 satisfied customers
I have lived in a homeowners association in Florida. The HOA
I have lived in a homeowners association in Florida. The HOA has both long term or residential and short term sections clearly defined. I live in the short term section, we pay more than 3 times the r… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I've been told by a neighbor that if an HOA provides lawn
I've been told by a neighbor that if an HOA provides lawn care and landscaping services, Florida HOA Laws state that it's an "all or nothing" decision. Our HOA says we are each responsible for the 4-f… read more
Attyadvisor
Attyadvisor
Attorney
7,734 satisfied customers
A supposed homeowners association and the new builders that
A supposed homeowners association and the new builders that bought 5 lots went into an agreement to maintain a private road. Since they own the road the Parrish won't help and soon garbage mail or any… read more
Attyadvisor
Attyadvisor
Attorney
7,734 satisfied customers
What is the liability to a homeowners association for
What is the liability to a homeowners association for property that was dedicated to them? … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,785 satisfied customers
I am a homeowner of a condo in texas, can an hoa association
I am a homeowner of a condo in texas, can an hoa association stop the sale of unit over hoa dues owed, I have under contract now a cash sales fast close, they are trying to forclose, but I have a buye… read more
Ray
Ray
Lawyer
Doctoral Degree
7,559 satisfied customers
HOA Architectural laws for airspace to condo owner as a rule
HOA Architectural laws for airspace to condo owner as a rule to build only 16 feet from a bedroom without this written in declaration only stated verbal years ago. Can the HOA deny the owner a fair an… read more
Ray
Ray
Lawyer
Doctoral Degree
7,559 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x