Developer not upholding road maintenance covenant

I have a situation where the developer won't maintain our dirt road. We don't have an Hoa yet the covenant states he will maintain the road until 50% of the 30 lots are sold. Only 10 are sold. I tried to phone no response to my message. I have now sent a certified letter and he won't sign for it. So it has not been picked up. We have offered to do the work if he'll rent the grader Can I take him to small claims court for the bill or do I have to get a lawyer. Until our other lots are sold we don't have a need for an Hoa yet. It's just his road issue which is getting worse.

Go to your local courthouse or perform research to obtain forms and information [on how] to file for an injunction in your county/state, etc..

Rosemary,

It sounds like you need an injunction to order the developer to uphold his end of the bargain.

Injunctions are not the sort of thing that a small claims court can issue and most of us are out of our league trying to obtain one in a higher court. Therefore, you need the services of an attorney.

As a general rule, when you sue for relief under the terms of a contract you can recover the costs of the attorney's fees from the losing party. The amount is usually at the discretion of the court and one test is whether the litigation was necessary. Keep that unclaimed certified envelope (unopened) as it is evidence that you had no choice but to sue.

An Injunction is a prohibition. What you want is Specific Performance - which is a court order requiring someone to do something. Courts are generally reluctant to issue specific performance orders. Unlikely that you will obtain relief through the courts.

As others have said, dig around a bit and learn what you can about the financial stability of the developer.

what you need:

A "Specific Performance Injunction" directing the developer to fulfill his side of a contract ~ roads.

You WILL need an attorney.

Wikipedia is useless and not accepted as reference in many teaching institutions.

Here's another Wiki definition:

An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing specific acts.
A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment.

...An injunction can require someone to do something, like clean up an oil spill or remove a spite fence. Or it can prohibit someone from doing something, like using an illegally obtained trade secret. An injunction that requires conduct is called a "mandatory injunction." An injunction that prohibits conduct is called a "prohibitory injunction."[3] Many injunctions are both--that is, they have both mandatory and prohibitory components, because they require some conduct and forbid other conduct.

http://en.wikipedia.org/wiki/Injunction

You are missing my point. Courts are far less likely to award Specific Performance than award prohibitory injunctions. There is a clear distinction between the two types of actions regardless of how these actions are labeled or defined.

Simply put, courts are likely to prohibit behavior & unlikely to make behavior mandatory. In the OP's case, there is zero chance that a court will award specific performance.

First the legal discussion:

The OP could seek legal relief or equitable relief. Legal relief would come in the form of money damages. Equitable relief would come in the form of specific performance (or whatever you choose to call an order to perform). However ... and this is the key issue ... equitable relief is extraordinary relief - It is only available if legal relief (money damages) could not compensate the injured party for the harm. In you example of a typical fee for services contract arrangement, money damages is adequate relief. Courts in every state (with the possible exception of Louisiana) would award money damages (legal relief) rather than specific performance (equitable relief).

Now the pragmatic discussion:

Assuming that the OP goes to the bother of filing and winning a lawsuit, and obtains a money judgment against the developer. The judgment is only a right to collect - not a guarantee that the judgment can be collected. If the developer has abandoned the project, or if the developer is using a corporate entity to intentionally shield assets (which is typically done), then the lawsuit will cost money and probably not generate any money in return.

On the other hand, if the developer owns some construction assets, it is possible that those could be seized and sold to satisfy the money judgment. Because there is a high risk that no assets will be found, the OP should gather as much information about the developer before deciding what path to follow.

Citations:

I would ask you to cite to a case where a contractor was ordered to complete a project. While there may be extraordinary circumstances that warrant such an order, courts do not grant them in garden variety fee for services contracts like the ones we are talking about.

As does mine:

thanks I will surely do that..this developer is not broke, he's just got an attitude and thinks he can ignore us. I used to be an HOA president and I know how covenants work and I have the filed covenants that he wrote. As I said I have tried to call, left a friendly message, no response, now I sent a certified letter and a copy to the other 10 of the landowners so he knows I know my business..so I will wait for the unclaimed letter than take that to the attorney as one suggested here. You folks are great, I am so glad I found this website as I never had to deal with a developer only the property owners..now the shoe is clearly on the other foot. thanks again

perhaps the developer has a performance bond posted with the authority having jurisdiction

county or city