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Association Is Denied Injunction to Repair Leak


The association sued Noble for damages, a permanent injunction and declaratory relief, alleging that he had denied the association access to his unit to inspect and repair a water leak that was damaging the adjacent common area. Consequently, the common area continued to suffer mold and drywall damage that could potentially extend to other residential units. The association asserted that it had no adequate remedy at law to enter Noble’s unit without a mandatory injunction and the condominium would suffer irreparable harm if he was not immediately ordered to allow inspection of his unit.

When the association filed its ex parte application for a temporary restraining order, it supported the application with affidavits from the building manager and building engineer stating they both received reports that the water damage to the common area was caused by a leak originating in Noble’s unit.

Noble opposed the application, stating that he did not receive a written report indicating a problem with his property and that his own plumbing expert found his shower valve was in perfect working order. Noble maintained that the declaration only authorized the association to enter a unit to repair and maintain, including a default by the owner, or for an emergency. He argued that these conditions did not exist. The court denied the association’s request for a temporary restraining order and scheduled a hearing for preliminary injunction.

At trial, Noble stated that he had allowed the association to inspect his tub and shower, and it was discovered that slight moisture appeared in the common area when his shower was used. Subsequently, the association then left him a voice mail message informing him that his shower was leaking and it was his responsibility to repair the leak. He contacted a plumber to inspect his shower, who told him that the leak did not originate from his unit and could not be repaired from his unit.  He offered to let the association enter his unit to remove the cover plate on his shower valve and make the requested repair, but the association did not respond to his offer. He also stated that he made his plumber’s report available to the association.

The association provided testimony from the building engineer who performed the inspection of Noble’s shower and who determined that Noble’s shower valve was the source of the leak. An emergency service manager for a restoration company testified that in order to successfully remediate the mold damage to the common area, part of the wall would need to be cut out, and since the wall was on the opposite side of Noble’s tub and shower fixtures, the repairs would have to be addressed from Noble’s unit.

The trial court granted the association’s request for a preliminary injunction, finding that the association had demonstrated its probability of success. Noble appealed.

In his appeal, Noble represented that he was not challenging the preliminary injunction, but characterized the injunction issued by the trial court as mandatory in nature. The appeals court agreed. The injunction ordered Noble to grant the association access to his unit to inspect and make appropriate repairs to cure the plumbing problem; thus, compelling affirmative action on Noble’s part that altered the status quo in advance of trial on its merits. The purpose of a preliminary injunction is to preserve the status quo until a determination can be made on the merits of the case.

The California Supreme Court has held that a mandatory injunction is not permitted except in clear and extreme cases where a showing is made that irreparable injury or interim harm will result if an injunction is not issued pending adjudication of the merits.

The appeals court concluded that the association failed to prove irreparable interim property damage because its evidence did not suggest that the mold damage was ongoing and would either continue or become worse in the interim. Even assuming the possibility that the damage was ongoing, the association failed to demonstrate that it had an adequate remedy for the interim damage.

Also, no showing was made by the association that the common area was somehow unique or had some intrinsic value, or that the interim damage was not compensable in monetary damages. The court found no evidence of non-compensable harmful health consequences to association members stemming from the mold. The association had merely asserted, without citation or judicial notice on the point, that “the health risks of mold are well known.”

Further, the court could find no evidence to support the trial court’s implied conclusion that, absent an injunction, the association would suffer irreparable or non-compensable injury. It held that the likelihood of the association’s success on the merits, standing alone, was not enough to justify an order changing the status quo pending adjudication. Therefore, it denied injunctive relief on the basis that the association could be fully compensated by payment of damages in the event it prevailed at trial.

The court affirmed the trial court’s order compelling Noble to grant the association access to his unit, but reversed the order permitting the association to make repairs to cure the plumbing problem.