Legal: Is Your View Home Protectable?

From J. Scott Souders, attorney:

1.    If You Pay Extra Money For A View Is It Protectable?

I have received many phone calls over the years from homeowners who want to sue their
neighbors or the City or their HOA because they have “lost their view” due to construction on a neighboring lot or the neighbor’s trees have grown like weeds.  Almost without question the aggrieved party feels strongly that they paid for this view and it’s a protectable right under California law.

How many times do you see in the MLS where the agent advertises and promotes what a great view their listing enjoys.  Obviously views come with a price, particularly along the coast here in Orange County.  Even non-coastal properties are hawked by agents as having panoramic views of mountains or city lights with the expectation that will cause a buyer to pay more money for the property.

The issue: Are all view rights protectable in California?

The answer to that question is yes if you happen to live in one of the handful of cities that have adopted view ordinances.  Those cities that I am aware of, which may not be exhaustive because I don’t track all of the cities that have view and/or tree ordinances, are as follows:

a.    Laguna Beach
b.    Del Mar
c.    Rancho Palos Verdes
d.    Orinda

If you live in one of those cities you can most probably file an action in court or petition the city to have your views maintained and/or restored as a result of a neighbor’s wrongful action.

If you live in an HOA your CC&Rs may provide for view protection if the view obstruction is within your community only.

Now for those who don’t live in HOAs that have CC&Rs that provide for view protection or within one of those handful of those cities what are your options if someone attempts to impair  your view by letting their trees grow or trying to develop their own property to their satisfaction and enjoyment.  The answer is there may not be much you can do and you could be wasting money starting a legal fight which you can’t finish successfully.  The reason why I say that is based upon the following:

a.    Just because you have someone blocking your view doesn’t necessarily
constitute a nuisance in which you can sue the neighbor claiming nuisance.  For instance a homeowner in Lake Tahoe sued his neighbor claiming that the neighbor’s new deck obstructed his views.  The homeowner lost.  The holding of the case was that a landowner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such right. See Posey vs. Leavitt 229 Cal App 3rd 1236, 1240.

Just because the neighbor’s view obstruction causes a loss of value to your property does not constitute a cause of action in favor of the aggrieved homeowner.  It is not a nuisance according to case law.  See Oliver vs. AT&T Wireless Services 76 Cal App. 4th 521, 530.  In that case the aggrieved homeowner got to “enjoy” a new 130ft. cell tower on the adjoining property.  This was held not to constitute a nuisance even though it substantially decreased the value of the homeowner’s property.  Applying those two aforementioned cases, if the neighbor legally erects a structure that blocks your view you many have no remedy or cause of action.  If the neighbor lets the trees fill in and grow, again, you may not have a case unless the neighbor is violating any city tree view ordinance or CC&Rs of an HOA.

b.    You can’t claim inverse condemnation against the city that planted large redwood
trees in a nearby park thereby impairing the view from the owner’s backyard which previously had an unobstructed view of the city lights of Los Angeles and the Hollywood Hills.  In the case of Boxer vs. City of Beverly Hills 246 Cal App. 4th 1212, the homeowner claimed inverse condemnation because his views were negatively effected.  Therefore, the value of his property tanked.  The homeowner claimed that the city owned him just compensation for the loss of the value to his property.

The court of appeal said no way. There has been no physical invasion or physical damage to the homeowner’s property.  Nothing has been taken within the meaning of the California Constitution.  Diminution of the value of the home without more does not constitute a compensable taking.

Conclusion: Before you have your clients shell out big bucks to buy into that perpetual view that they are paying extra for familiarize yourself with these cases.  If the subject property is not located in one of those handful of cities that has a view or tree ordinance or an HOA who has view restrictions in the CC&Rs be prepared to punt on questions dealing with the ability of the buyer to enforce views if the neighbor impairs their view.  Always pass on that type of question to an attorney and, even better, put it in writing that you cannot give legal advise, consult an attorney.

Scott Souders is a real estate attorney who has practiced real estate law in excess of 42 years in Southern California.

Disclaimer:  The Real Estate Law Update cites cases or statutes which are summarized and should not be relied upon without fully reading the cases or statute in the advance sheets and shepardizing the same and consulting with your own attorney.

Very truly yours,

J. SCOTT SOUDERS

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