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Real Estate & Property Law: a View from the property line
Can a Fence Be held in Contempt?
By William G. Gammon
Contempt is a sometimes misunderstood judicial remedy. There are two types of contempt, criminal and civil. Criminal contempt is assessed as a "punishment" for offending conduct. Criminal contempt penalties typically include some monetary fine in addition to, or in lieu of, incarceration for the offending party's misconduct. The length of time spent in confinement is fixed by the judge's determination. Civil contempt, however, is a different animal altogether. Sure, the judge can assess a fine and/or incarceration against the offending party, but this remedy is not a "punishment" per se; rather, the contempt order serves as a motivator to get the offending party to ACT (or to stop acting, as the case demands). The length of time spent in confinement for civil contempt is entirely in the hands of the offending party; that is, the offending party is said to "have the keys to his jailor." End the misconduct, end the incarceration. The choice is up to the offending party.
In the case of the "contemptuous" fence, the community association obtained a permanent injunction against a homeowner because the homeowner had constructed a fence in violation in of the community's deed restrictions. The trial court ordered the homeowner to comply with the deed restrictions and rebuild/repair/remove the offending structure. In a subsequent hearing held almost three years later, the trial court found the homeowner in contempt of the court's order because the homeowner had failed to comply with the deed restrictions, the fence was still non-compliant, the homeowner had the means and ability to comply, and the homeowner had deliberately and willfully refused to comply. The trial court ordered the homeowner incarcerated until he was "purged of his contempt" by complying with the permanent injunction. The homeowner appealed, citing that contempt could not be ordered on a simple money judgment. The appeal ultimately failed, because the trial court has wide discretion when enforcing its own orders, a key distinction to note in this matter. The contempt order is not issued as a "moral commentary" against the offending party, but rather, is a mechanical penalty applied to parties who ignore court orders, regardless of the underlying conduct that initiated the contempt proceeding. Absent a court's gross abuse of discretion, if there is any evidence to support that trial court's determination that a party willfully disobeyed the court's order, then the order will be affirmed on appeal.
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