Chapter 9.6 – Enforcement of Restrictive Covenants by Judicial Proceeding 2017-02-04T08:14:02+00:00

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).