Home > Uncategorized > Real Estate Litigation: The Extraordinary Remedy of an Injunction

Real Estate Litigation: The Extraordinary Remedy of an Injunction

I was recently in court over a real estate dispute between two neighbors – My client’s  neighbor had blockaded off my client’s access to his Property.  There was a dispute over who owned the property at issue – see my article regarding adverse possession: https://jeshualaukalegalnews.wordpress.com/2013/06/26/squatters-rights-how-easy-is-it-to-acquire-property-by-adverse-possession/

 

My client posed a fundamental question to me:  How do we proceed?

 

We filed with the Court a request for a preliminary injunction – ordering the removal of the blockade from the Property.

 

I. Injunctions

 

Injunctions are special remedies – they are “equitable” versus “legal damages”.

 

The Michigan Supreme Court has held, that “[i]njunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury.” Pontiac Fire Fighters Union Local 376 v. City of Pontiac, 482 Mich. 1, 8 (2008).

 

The party seeking injunctive relief has the burden of establishing that a preliminary injunction should be issued.

This is a high burden, since a party asking for an Injunction is asking the Court, in equity, to compel someone to do something.

 

 

A.  How Does a Court Consider Whether to Issue an Injunction?

The court takes into consideration a 4-part balancing test.” State Employees Ass’n v. Department of Mental Health, 421 Mich. 152, 157-158 (1984). Those elements are as follows:

  1. Plaintiff has a likelihood of success on the merits of his claims;
  2. Plaintiff will suffer irreparable injury if a preliminary injunction is not granted;
  3. Plaintiff has no adequate remedy at law; and
  4. Plaintiff will suffer greater injury from the denial of temporary injunctive relief than the opposing party will suffer from the granting of such relief. Id.

 

In my case, in order to get the court to agree to an injunction (until the ultimate case was decided at trial) I had to show the Court not only that my client had the stronger case, but also that there would be serious harm – irreparable harm, if the injunction wasn’t granted, AND that simply money damages wouldn’t properly compensate my client, AND that my client would suffer greater harm than his neighbor, if the injunction was denied.

 

Basically, the court weighs these elements “to balance the benefit of an injunction to plaintiff against the inconvenience and damage to defendant, and grant an injunction or award damages as seems most consistent with justice and equity under all the circumstances of the case” Wiggins v. City of Burton, 291 Mich. App. 532, 558-59, 805 N.W.2d 517, 534-35 (2011).

 

Keep in mind, an injunction does not solve the ultimate problem. It is a temporary solution, until an ultimate trial on the merits of the case – which could take months, depending on the Court’s docket. A

 

II. Lesson – Injunctions are hard to Win – Consider All Available Options Before Filing Suit

Sometimes a client is forced into a situation where filing for injunctive relief is the only logical next step, especially in circumstances where time is of the essence. However, it can be costly – with a very uncertain outcome.

Another possible solution is Mediation.

Many real estate disputes could benefit from mediation. Mediation make senses for many reasons, one is because Property disputes largely involve emotions, and personal indignation that could be much better addressed through a mediation (as opposed to an adversarial system like our Civil Courts).  It is much easier to advise a business owner to settle a lawsuit that amounts to not much more than a “business decisions” versus a property owner that feels personally antagonized by a neighbor.

 

 

Do you have an interesting business or real estate issue? I’d love to hear about it. Email or call me.

(616) 454-3883; Jeshua@dwlawpc.com

http://www.dwlawpc.com

 

 

 

 

 

 

 

 

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