Chapter §8.7 Remedies

• Jurisdiction: Washington

§8.7 REMEDIES

Injunctive relief is the most common remedy awarded in covenants cases. Depending on the circumstances, however, a plaintiff may be entitled to damages, a declaratory judgment, or attorney fees.

(1) Injunctive relief

In the vast majority of covenants cases, the plaintiff seeks the equitable remedy of injunctive relief rather than damages. Although there has been some academic debate as to the correctness of awarding injunctive relief in cases involving common law real covenants, the debate has not been joined by the Washington courts. See 17 William B. Stoebuck & John W. Weaver, WASHINGTON PRACTICE: REAL ESTATEPROPERTY LAW §3.9 (2004). Washington decisions determining whether to grant injunctive relief tend to focus on the merits of the particular case rather than upon the type of restriction (equitable or common law) at issue. See, e.g., Holmes Harbor Water Co. v. Page, 8 Wn.App. 600, 603, 508 P.2d 628 (1973); Lenhoff v. Birch Bay Real Estate, Inc., 22 Wn.App. 70, 76, 587 P.2d 1087 (1978).

To obtain injunctive relief, the plaintiff must establish (1) a clear legal or equitable right, and (2) a well-grounded fear of immediate invasion of that right by one against whom the injunction is sought. Hollis v. Garwall, Inc., 137 Wn.2d 683, 699, 974 P.2d 836 (1999). No showing of substantial damage is necessary; covenants may be enforced in equity by reason of the actual or threatened violation itself and the desire to avoid the breaking down of the "common plan." Hagemann v. Worth, 56 Wn.App. 85, 88-89, 782 P.2d 1072 (1989). But cf. Lenhoff, 22 Wn.App. at 76.

In Holmes Harbor, the court stated that the following equitable factors may be considered in determining whether to grant or deny an injunction:

(a)	the character of the interest to be protected,
(b)	the relative adequacy to the plaintiff of injunction in comparison with other remedies,
(c)	the delay, if any, in bringing suit,
(d)	the misconduct of the plaintiff, if any,
(e)	the relative hardship likely to result to the defendant if an injunction is granted and to the plaintiff if it is denied,
(f)	the interest of third persons and of the public, and
(g)	the practicability of framing and enforcing the order or judgment.

8 Wn.App. at 603 (citations omitted). Generally, injunctive relief will be awarded if the covenant is enforceable.

(2) Damages

Although damages are a possible...