We Won the Case: Now What?

From time to time, a community association is forced to sue a member who has violated the governing documents. Many times, these lawsuits are "settled" without trial. Sometimes however, a trial must be held to determine whether and to what extent the association can obtain enforcement of the architectural or other "use" provisions of the governing documents, especially the CC&Rs. This article addresses enforcement of judgments whether obtained by "default"—where the other party does not contest the lawsuit—or following a trial by jury or the court.

A court order judgment

A judgment arising out of a governing document violation almost always includes an "injunction" (sometimes called "injunctive relief" or, simply, a "court order"), which is a court "command" that requires the owner either to do something (restore property to its pre‑altered condition) or to stop doing something (operating a business in his home). Sometimes a judgment will permit the association to enter a member's property or even the inside of his home if the owner fails voluntarily to cure the violation within the time stated in the judgment. For instance, in the case of a member's unapproved addition of a second story balcony, the judgment should contain a provision that allows the association to enter upon the member's property to remove the balcony whether the owner allows access or not. Finally, the judgment usually includes an award of attorneys' fees and costs incurred by the association in enforcing the CC&Rs, rules, regulations, or architectural standards as permitted by Civil Code Section 5975 and most CC&Rs. The judgment should also include language allowing the association to record liens to recover all sums awarded or expended to enforce the judgment (such as the contractor fees to remove the balcony or legal fees and costs).

Consulting counsel advice

In certain circumstances, it may be unfeasible or dangerous for the association to enter upon the member's property or unit to achieve compliance with the judgment, and such access should never be undertaken lightly or without the advice of counsel. In that case, the association may be faced with the problem of a member’s ignoring the court's judgment by continuing the offending behavior or refusing to remove the unapproved alteration. Aside from "self help," a judgment can be enforced with further judicial assistance.

Contempt of court

The usual way to force a member to comply with the injunctive relief portion of a judgment or court order is to have the member held in contempt of court. A contempt proceeding is like a criminal trial. The party seeking the contempt citation must prove beyond a reasonable doubt that

  1. the judgment or order violated is valid
  2. the respondent or member has actual knowledge of the judgment or order
  3. the respondent or member has the ability to comply with the judgment or order
  4. the respondent or member has willfully disobeyed the judgment or order

The remedy for contempt is either a monetary sanction, imprisonment, or both.

How  does a HOA begin a contempt proceeding?

A contempt proceeding begins with an application to the court that issued the judgment or order for an Order to Show Cause why the member should not be held in contempt. The association needs to show with evidence that the judgment was served on the member and that the member has not complied with the terms of judgment or order. Usually, a sufficient showing can be made by a declaration by the association's manager or a board member that the judgment was served on the member and that the member continues to engage in the offending behavior or has failed to remove the unapproved alteration. The application must be served on the member with enough time for the member to prepare a response. The court then holds a hearing to determine whether enough evidence has been put forth to hold a contempt hearing.

If the association has made a sufficient showing at the Order to Show Cause hearing, the court then sets a contempt hearing. A contempt hearing is a quasi‑criminal proceeding at which the court will take evidence, either orally or in writing, concerning the member's failure to abide by the judgment or order. The association is required to prove beyond a reasonable doubt that the member has willfully violated the judgment by continuing the offending behavior or failing to remove the unapproved alteration. If the association meets its burden of proof, the court will hold the member in contempt of court and either issue a "body attachment" or a monetary sanction, or both. A "body attachment" is essentially an arrest warrant that directs the county sheriff to take the member into custody until such time as the member complies with the judgment or order. A monetary sanction may include an award of attorneys' fees incurred by the association in obtaining the contempt citation and an amount to punish the non­compliant member. The member is released from the contempt citation only after he or she has complied with the terms of the judgment or order.

Problems collecting monetary portions

Even if the member complies with the injunctive relief portion of a judgment, an association may be faced with the problem of collecting the money portion of the judgment. A money judgment can be issued for attorneys' fees, damages, and even unpaid assessments. An association has several options available to it to collect a money judgment if the member does not voluntarily pay it. First, the association may record the judgment in the county in which the member owns real property. Recording the judgment creates a judgment lien against all real property owned by the member in the county. In addition, the judgment lien attaches to all real property acquired by the member after the judgment lien is recorded. If the member transfers the real property to another person, the acquiring person takes the real property subject to the judgment lien. If the member decides to sell real property subject to the judgment lien, he or she must pay it off in order to convey good title to the buyer. In addition, lenders will require that a judgment then be paid off if a member decides to refinance real property subject to a judgment lien.

Foreclosing on a judgement lien

An association may also foreclose on its judgment lien if it does not want to wait until the affected real property is sold, refinanced, or if the member will not pay it voluntarily. In this process, the association applies to the court for a writ of execution and directs the sheriff in the county where the real property is located to sell the real property to satisfy the judgment lien. Once the sheriff receives the writ of execution and the applicable levy fee, the sheriff will serve the writ of execution on the member, any tenants, and post it on the applicable real property. This process is called a levy. The sheriff will then notify all parties that have an interest in the real property of the execution proceeding or levy.

After serving and posting the writ of execution and providing all interested parties with notice of the levy, the association must wait 120 days before giving notice of the sale. This waiting period is designed to provide the member with enough time to pay the judgment lien before the real property is sold. If the real property to be sold is a dwelling (i.e., someone lives in it), the association will have to apply to the court for permission to sell it. The court will hold a hearing to determine whether there is enough equity in the property to satisfy the judgment lien after deducting the amount of any senior liens and the member's statutory homeowner's exemption.

If the court finds that the real property is the member's dwelling and that there is sufficient equity to satisfy the judgment lien, it will order the real property sold. If the court finds that the real property is the member's dwelling and that there is not sufficient equity to satisfy the judgment lien, the court will not allow the real property to be sold, effectively halting the levy process. Real property that does not serve as the member's primary residence will be ordered sold even if there is not enough equity to satisfy the judgment lien. Therefore, it is important that the association obtain lien and market information respecting the real property before it begins the foreclosure process. This information can be obtained by purchasing a preliminary title report respecting the real property to obtain lien information and consulting with real estate professionals to obtain market information.

After 120 days have elapsed and the order for sale is obtained, the sheriff will set a sale date. The sheriff is required to publish the notice of sale and set the sale date at least 20 days in the future. The sale is conducted like a foreclosure sale where title is awarded to the highest bidder. The association need not have cash on hand as it may credit bid the amount of its judgment. The winning bidder takes title to the real property subject to all liens senior to the lien under which the sale was conducted. In the vast majority of cases, the member will satisfy the judgment lien to avoid losing his or her real property.

Judgement creditor sales

Judgment creditor sales are unique. The sale is conducted by a sheriff under court order and the sale is absolute, which means that the debtor cannot undo the sale by paying the judgment after the sale takes place. Finally, the sale process is governed by the Enforcement of Judgments Act, a series of special laws intended to clarify debtor and creditor rights regarding collection of judgments. To use this process, a creditor simply files a collection lawsuit in the appropriate court (small claims court is fine). Once it obtains a money judgment, it begins the execution sale process described above. To hold the sale, the only requirement is that the real property has sufficient equity to pay off the lien.

A creditor that does not want to undertake the time and expense of a foreclosure sale may collect the monetary portion of its judgment like any other money judgment. For example, the debtor's bank account can be "attached" or his/her wages garnished.

Successful litigants are surprised to learn that obtaining a judgment which contains injunctive and monetary relief does not guarantee immediate recovery of money or compliance with court orders. A judgment is simply an order from a court that a member refrain from certain behavior or compels certain action. It is not self‑executing. Accordingly, the "winner" will still have to undertake judgment enforcement proceedings to ensure that a judgment awarded in its favor is complied with. The procedures discussed above are designed to achieve judgment compliance.


Paul Windust is an attorney at Berding and Weil in Alamo.

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