Can I Stop My Neighbor’s Addition From Blocking My View?
By David Hamerslough
August 9th, 2016
When it comes to our homes, most of us assume that what we see and experience in terms of light, air, views, privacy, and other conditions when we purchase the home will remain the same while we own it. However, some homeowners get a rude awakening when a neighbor decides to remodel, add a second story or a secondary dwelling unit, or let their landscaping grow higher than it has in the past. When this occurs, many homeowners do not understand that the general rule in California is that there is no automatic right to preserve the status quo with respect to light, air, views, and privacy.
Absent a written easement preserving these conditions, a property owner’s rights on these issues will generally be regulated only by (1) planning, zoning, or building ordinances for the jurisdiction in which the property is located, (2) covenants, conditions, and restrictions (CC&Rs) that govern the properties, or (3) restrictions and rules if the properties are part of a common-interest development.
Many homeowners may be surprised to discover the limited scope that local planning, zoning, or building ordinances have in terms of preserving the rights we’re talking about. The planning and design review process determines the height, location, and setbacks of structures but does so based on guidelines that may not be as restrictive as CC&Rs. This process also does not include an analysis of any CC&Rs and whether the proposed development/construction is in conflict with the CC&Rs.
The planning and design review process generally takes into consideration the impact of the proposed development/construction on neighboring properties but usually with respect to regulating the number of windows and/or balconies that may look onto adjoining properties or by requiring some planting of vegetation to mitigate the impact on sightlines from one property to another. This process does not usually preserve the degree of light, air, views, or privacy that the neighboring property originally enjoyed.
A property owner who will be impacted by proposed development/construction should get involved in the planning and design review process for a neighbor’s proposed project. They should determine, if they have notice of the proposed project, the potential impact that the project will have on their property, hire qualified professionals to assist in analyzing the project to see if it complies with all local ordinances, and actively reach out to their neighbors and the local governmental agencies to provide input on the project and, particularly, the impact of the project on neighboring properties.
One reason for getting involved early on in what is referred to as the administrative phase is to try and address any concerns and hopefully reach a resolution before your neighbor has incurred what can be significant expenses in connection with design, architecture, engineering, construction, etc. Getting involved early can also prevent the resentment that usually accompanies objections that are raised after approval for a project has been granted by the governmental agency through the administrative process.
Another reason for getting involved early is to determine if your neighbor’s proposed project complies with any CC&Rs. Generally speaking, CC&Rs are a set of rules, regulations, and restrictions that property owners have agreed will regulate the use and ownership of their respective properties. CC&Rs can include restrictions on the height of not only the main dwelling but secondary structures, limit the distance of any structure to a property line, limit the height of vegetation (shrubs, trees, etc.), specifically provide for the preservation of views, and/or establish an Architectural Control Committee to evaluate and approve any proposed project.
CC&Rs are interpreted under contract rules. The primary rule of contract interpretation is to construe the CC&Rs in accordance with the intent of the parties in order to give effect to the purposes and objectives of the restrictions to protect the aesthetics and value of the property subject to the restrictions. Sometimes the intent of the CC&Rs can be determined by their language, such as where the developer intends to preserve views or maintain some general appearance or standard within the community. However, where the language in the CC&Rs is ambiguous or susceptible to more than one interpretation, the intent of the original subdivider can be significant. Unfortunately, many sets of CC&Rs are very old and the parties responsible for creating them are no longer alive. How the CC&Rs have been interpreted and the community’s conduct and actions with respect to interpreting and enforcing the CC&Rs then become part of the evaluation of intent and enforcement.
Contract rules regarding the interpretation and enforcement of CC&Rs are subject to, among others, the defenses of waiver and estoppel. Providing input and any objections to a proposed project in its early stages can prevent such claims. Waiver can occur, among other circumstances, where a homeowner fails to promptly enforce the CC&Rs with knowledge of their violation or where the CC&Rs in their entirety or a specific restriction thereof (e.g., height or setback of structures or landscaping) have not been historically enforced. Waiver may also be argued where only some provisions of the CC&Rs have been historically enforced and those that are now being sought to be enforced are similar in purpose to those that have not been enforced. The CC&Rs should be reviewed to determine if there is a no-waiver clause. This type of clause may provide that the failure to enforce any provision of the CC&Rs will not preclude the enforcement of another provision therein.
CC&Rs are also subject to other defenses, including changed conditions within the tract or subdivision governed by the CC&Rs. For example, if two-story homes or commercial uses exist within a tract or subdivision in violation of the CC&Rs, this may be enough to constitute changed conditions and preclude enforcement of a provision restricting the height of a residence or a commercial use of a neighboring property.
CC&Rs are also generally viewed under principles of equity, which means that a judge interprets the CC&Rs while taking into consideration what that judge believes is fair, just, and reasonable under the circumstances. Any delay in seeking to enforce the CC&Rs when one has knowledge of a violation being committed is an equitable factor that a judge could consider in deciding whether to enforce any restrictions, including conditioning the enforcement on reimbursement of costs incurred due to the delay. How and if the parties attempted to resolve any violation is another example of an equitable factor that a judge might consider.
CC&Rs can contain attorneys’ fees clauses, which govern whether either side will be able to recover its attorneys’ fees and costs in the event of a dispute. As with any other dispute, it is important to limit the amount of attorneys’ fees and costs that are spent in relationship to the impact of a violation of the CC&Rs. At times, the money that would be spent on attorneys’ fees and costs can be better spent on solutions to the violation, including vegetation, re-design of the proposed development/construction, or other practical solutions. Understanding your rights and whether they can be enforced is best done in consultation with a qualified real estate attorney.
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