apologize for the delay in my newsletter schedule. I didn't run off and
join the Foreign Legion. Instead, I've been busy hiring people and
renting office space. We are growing.
I am staffing offices in
Northern California, adding three, maybe four additional attorneys to
the firm and two more staff members.
The first in a series of announcements follows my article on Protected Views.
WHAT IS A
QUESTION: Some owners in our HOA have great views, others none at all. If the ocean is only visible from a corner
of the lot and can be covered by one
hand at arm's length, is that a view? We are spending $60,000 per year on idiotic tree
RESPONSE: I understand the need to keep costs under control. To define a view we have to start with your governing documents.
Typical CC&Rs. View protection language in CC&Rs
is never precise. The following two provisions are typical:
CC&Rs include language giving the architectural committee or the
board authority to determine when an obstruction is unreasonable. Older
documents often do not--they provide no definition and no arbiter for
determining what is reasonable or unreasonable. That's where courts come
...nor shall any tree, shrub or other landscaping be planted or
any structures erected that may at present or in the future obstruct
the view from any other lot...What is a "view" and what does "unreasonably obstruct" mean?
Dictionary Definition. Dictionary definitions of "view" are not much help:
No tree, shrub, or other landscaping shall be planted or any structures erected
that may unreasonably obstruct the view from any other lot.
Black's Law Dictionary: "the outlook or prospect from the windows of one's house."
"View is a general word, referring to whatever lies open to sight: a
fine view of the surrounding country. Prospect suggests a sweeping and often distant view, as from a place of vantage: a beautiful prospect to the south."
Case Law. Following are some cases where various view disputes were addressed:
In Seligman v. Tucker
(1970), the association's CC&Rs had a view-protection clause but no
standard for determining what view was protected. The court made its
own determination that the view being protected was the original view
when the houses were built. It decided that a down-slope neighbor who
was building a second story on his house unreasonably obstructed
plaintiff's view of the San Fernando Valley. The defendant was ordered
to remove his second story.
In Ezer v. Fuchsloch
(1979), trees on a neighboring lot had grown such that they almost
completely obstructed plaintiff's
view of the ocean. The court interpreted the view language to mean that
trees and shrubs had to be trimmed to rooftop height to preserve
views. Defendants argued that their 25-foot tall pine tree had an
independent right to exist without being trimmed. The court found the
"tree rights" argument interesting but unpersuasive. The defendant was
ordered to trim all trees and shrubs to rooftop level.
In Zabrucky v. McAdams
(2005), the view protection language was unclear as to whether owners
could add second stories to their houses. As part of its analysis, the
court found that to significantly obstruct any owner's view of the ocean
would depreciate the economic worth of their property as well as
dramatically reduce their enjoyment of their home. Since much of the
value of properties depended on their views of the ocean, the court
interpreted the CC&Rs to prohibit second stories.
In Ekstrom v. Marquesa
(2008), the CC&Rs protected views by requiring all trees be trimmed
to rooftop level. The board made an exception for palm trees since
trimming them would kill them.
advised by legal counsel that the board's exception was contrary to the
CC&Rs, the board adopted a definition of view that would avoid
trimming most palm trees. They defined "view" to be that which is
visible from the back of the house,
six feet above ground level, standing in the middle of the outside of
the house looking straight ahead to infinity, with nothing to the left
or right of the lot lines
being considered part of the home's view.
The court rejected the
board's definition. It ruled that the
architectural committee had discretion to determine whether
any particular palm tree exceeding roof height in fact blocked a view,
but the association did not have discretion to exempt trees that blocked views. The association had to trim palm trees even it killed them.
What Is A View?
From these cases, it is clear that courts will enforce view protection
language in CC&Rs. Unfortunately, they have yet to define a view. If
the ocean is only visible from a corner
of the lot and can be covered by one
hand at arm's length, is that a view? Probably not. The courts would
likely look at those areas of a lot where owner activities primarily
occur--from the patio, around the pool, and from the main windows in the
If your CC&Rs state that all vegetation must be trimmed to rooftop
height, then you have no choice but to trim all common area trees to
that height as often you need to. If your CC&Rs state that view
obstructions cannot be unreasonable, then adopt guidelines for
determining what obstructions are reasonable and budget accordingly.
Getting homeowners to trim their own trees is much more difficult--they
tend to be uncooperative when it comes to trimming their own trees. To
address this issue, you better add extra legal fees to your budget.
MADE MANAGING PARTNER OF
NORTHERN CALIFORNIA OFFICES
are pleased to announce that Nathan McGuire joined ADAMS | STIRLING as
Managing Partner of our San Francisco, Sacramento and Stockton offices.
He and his team will handle the Firm's growing base of Northern
"Nate" McGuire has been named Super Lawyer Magazine's
"California Rising Star" for the last 5 years running and is the
recipient of an AV Preeminent Peer Review designation from
Martindale-Hubbell, which signifies the highest level of excellence.
addition to extensive experience as general counsel to common interest
developments, Nathan has broad experience in real estate subdivision
development, purchase and sale agreements, escrow issues, restrictive
covenants, easements, deeds, and other issues affecting real property.
is an active member of the Community Associations Institute and the
Building Industry Association and a frequent author and speaker on
community association topics. He is also a delegate to the California
Legislative Action Committee and serves on the Executive Committee as
graduated with distinction from St. Mary’s College with a BA in English
and Philosophy. He earned his Juris Doctor from U.C. Davis School of
You can reach Nathan at: [email protected].
Adrian J. Adams, Esq.
ADAMS | STIRLING PLC
We are friendly lawyers. For quality legal service, boards should call (800) 464-2817 or email us.