9.6 Enforcement of Restrictive Covenants by Judicial Proceeding
The most common method of enforcement of a Restrictive Covenant is by judicial enforcement, in which the Homeowners Association files a civil lawsuit against the offending Homeowner for violation of a Restrictive Covenant. A lawsuit to enforce Restrictive Covenants may be filed in a Texas justice court, county court, or district court in the county in which the Homeowner’s property is located.1 Notwithstanding, most Restrictive Covenant lawsuits are filed in the district or county court because of the nature of the issues and the relief being sought by the Homeowners Association.2
A Restrictive Covenant enforcement lawsuit is prosecuted in a similar manner as a lawsuit to enforce the terms of a contract. Unlike a traditional breach of contract lawsuit, where the plaintiff seeks a recovery of compensable monetary damages caused by the defendant’s breach, in a Restrictive Covenant enforcement lawsuit, the Homeowners Association seeks enforcement of the Restrictive Covenant by “specific performance.”3 Specific performance is a form of remedial injunctive relief in which a court orders a party that is in breach of its contractual obligations to perform or comply with such contractual obligations. In the context of a Restrictive Covenant enforcement lawsuit, specific performance takes the form of a permanent injunction rendered by the court in which it orders the defendant-Homeowner to do or cease from doing such acts or omissions that are resulting in such Homeowner’s violation of the applicable Restrictive Covenant.4 Unlike a Restrictive Covenant, an injunction does not “run with the land”; rather, an injunction is personal to the defendant-Homeowner and is typically only enforceable for so long as such Homeowner owns the subject property.
If a Homeowners Association prevails at a trial on the merits of a Restrictive Covenant enforcement lawsuit, the court should order the defendant-Homeowner permanently enjoined from continuing the conduct or activity complained of. If thereafter the defendant-Homeowner fails to comply with the court’s permanent injunction, then such defendant-Homeowner will be considered to be in contempt of a court-ordered injunction. “Contempt of court,” as it is generally called, is a pseudo-criminal offense that can be punished by both civil fines and incarceration.5
In addition to injunctive relief, a court may also assess civil damages against a defendant-Homeowner in a Restrictive Covenant enforcement lawsuit. Chapter 202 of the Texas Property Code authorizes a court in a Restrictive Covenant enforcement lawsuit to assess civil damages against a defendant-Homeowner in an amount not to exceed $200 for each day of the violation.6
1 A Texas justice court, however, has limited jurisdiction regarding Restrictive Covenant enforcement lawsuits. A Texas justice court’s subject-matter jurisdiction is restricted to lawsuits concerning enforcement of Restrictive Covenants applicable to a Subdivision Development that do not concern a structural change to a dwelling. Tex. Gov’t Code § 27.034(a). The jurisdiction of a justice court in such regard is concurrent with the jurisdiction of a Texas district court. Tex. Gov’t Code § 27.034(d).
2 While Texas justice courts have limited jurisdiction to hear Restrictive Covenant enforcement lawsuits, they do not have authority to grant a writ of injunction, which is the most common relief sought in a Restrictive Covenant enforcement lawsuit. Tex. Gov’t Code § 27.034(j).
3 “Specific performance” is a breach of contract remedy that requires exact performance of a contract or contractual obligation in the specific form in which it was made, or according to the precise terms agreed upon. Black’s Law Dictionary 1138 (6th ed. 1990).
4 An “injunction” is a court order prohibiting someone from doing some specified act or commanding someone to do a specific affirmative act or thing. Black’s Law Dictionary 784 (6th ed. 1990).
5 See Tex. Gov’t Code §§ 21.001–21.002.
6 Tex. Prop. Code § 202.004(c).