Protect Yourself While A Dispute Is Pending: Preliminary Injunctions And Temporary Restraining Orders

Andrew M. McKenzie, Edmonds Lawyer

Real estate disputes frequently involve disagreements over rights of ownership, possession, and use of property.  However, the rigors of the litigation process and the ability of courts to process cases typically means it will take a year or more before the case gets resolved through a trial on the merits.  What do the parties do in the meantime?  Who gets to use or possess the disputed property while we wait for trial?  Uncertainty can cause further disputes and escalation, such as trespass and harassment claims, violence, threats of violence, and even police activity.  For these reasons, the law empowers courts to temporarily determine the parties’ rights to keep the peace.  An injunction is an order by a court to a party to do or not do something.  Violation of the order can result in sanctions against the violator, and even criminal liability for contempt of court.  Parties desiring the certainty of a court order while litigation is pending can move the court for a preliminary injunction or temporary restraining order.  In most cases, the goal of the order is to maintain the status quo so that the protected party does not suffer irreparable harm. 

To obtain a preliminary injunction, a party must show (1) a clear legal or equitable right; (2) a well-grounded fear of immediate invasion of that right; and (3) that the facts complained of are resulting in or will result in actual and substantial injury.  In determining whether the moving party has shown a “clear legal or equitable right,” the court considers the likelihood that the moving party will ultimately prevail at trial, given the facts and arguments presented to the Court at the time it rules on the motion.  Rulings on injunctions often happen very early in a lawsuit, often before parties have found an attorney to represent them, and before they have had an opportunity to gather material facts and muster the best available arguments in favor of their position.  For that reason, the ruling is generally NOT a final determination of the merits of the case, and parties should not treat it as such (except in rare instances when the court chooses to consolidate the hearing with the trial on the merits).  That said, preliminary injunction rulings often have profound practical effects on litigation; they usually signal to the parties how the court views the case and whose position would likely prevail at trial.  This can discourage the losing party from continuing to pour resources into pursuing or defending against the lawsuit, or embolden the prevailing party in demanding a more favorable settlement.  It can be extremely frustrating for the party who lost on the injunction when the court’s ruling was made without fair consideration of the law or facts.  However, the losing party can move to dissolve or modify the injunction, or re-move for the injunction when additional material facts have come to light.  Often times, this comes through the discovery process, such as interrogatories, document requests, depositions, and subpoenas.  When a party obtains a preliminary injunction, the court will require them to post a bond.  The bond protects the enjoined party from potential damages suffered, should it later be determined that the injunction should not have been issued.  In some tragic cases, a moving party’s inability to post the bond will result in the injunction never taking effect, to the extreme prejudice of the party who should have been entitled to the injunction.

Court rules generally prohibit temporary injunctions from being issued without notice to the other party.  However, it is possible in some instances to obtain a temporary restraining order (like a preliminary injunction, but only lasting up to 14 days) with NO advance notice if the moving party shows: (1) it clearly appears from the specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, los, or damage will result to the applicant before the adverse party or her or his attorney can be heard in opposition; and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the applicant’s claim that notice should not be required.  When a court issues a temporary restraining order, the court will normally set a hearing 14 days later on a motion for a preliminary injunction, which if granted means that the injunction normally stays in place until the trial.

Preliminary injunctions are a powerful tool to protect parties while they await a trial on the merits.  Not only does injunctions provide interim protection, but they can create leverage for settlements.  The lawyers at Beresford Booth have a wealth of experience in real property and business disputes.  We would be happy to assist you in pursuing your rights and protecting your interests.

To learn more about real property disputes, please contact Beresford Booth at or by phone at (425) 776-4100.

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