View Restrictions – Part II: HOA Covenants

This is the second of a two-part blog series on view
restrictions for homeowners. In the first post, I reviewed the general law in
California regarding view rights. I also recorded a short video on the subject
here. In both the vlog and blog post, I mentioned there are no inherent view
rights for California landowners. There are three deviations to the general
rule: (1) by express agreement of the parties; (2) through governmental
ordinance; or (3) under common interest development Covenants, Conditions &
Restrictions (CC&Rs).

Both agreement by neighbors and city ordinance are rare,
factually specific, and will not be addressed here. The third exception,
through a homeowner association’s CC&Rs, is the most common area of view

Common interest development CC&Rs are servitudes that
run with the land, meaning all landowners (including subsequent purchasers) are
obligated to follow the covenants and restrictions. They are created at the
time the development is established. A
homeowner association’s CC&Rs may contain language protecting homeowner
views by restricting what can be built or grown on an adjacent lot.

Even when a HOA’s CC&Rs establish view rights and
contain restrictions allowing for neighbors’ views, there are several areas of
vulnerability—both in upholding and challenging the rights and restrictions.

  • Lack of Authority. The foundation for virtually every right or law is grounded in authority. Does the organization, agency or entity claiming it can impose rules, regulations or laws possess the proper legal authority to do so. Here, in analyzing whether a particular common interest development has authority to impose view rights or restrictions, one should first confirm that the entity is a legal entity. If a corporation, is it active and current with the Secretary of State? Has the corporation followed all of the proper corporate formalities for its continued existence? Is the Architectural Review Committee properly constituted?
  • Improper Administration. Once it is proven that the association possesses the proper legal authority to govern over the members and impose its CC&Rs upon the property, it must also show that the board or the manager administered the rules or restrictions properly. This flaw may take the form of a wrongfully constituted ARC, reliance upon outdated, obsolete or vague documents, or lack of an appeal process allowing for due process.
  • Procedural Flaws. Often an association board of directors or ARC possesses the proper foundational authority with proper administration, but trips up procedurally. These stutters may include failing to abide by the technical protocols of reviewing and approving an ARC submission to construct a home addition or landscape plan, missing deadlines, disregarding vital information, failing to employ and expert (e.g., architect or engineer), relying upon flawed data, or myriad of other procedural traps.
  • Selective Enforcement. Although the first few pitfalls are often inadvertent or based on lack of education, guidance or information, selective enforcement may be intentional based on a board or board member’s personal animus against an owner. Association board of directors are required to act uniformly and consistently and must enforce view covenants accordingly. Failure to follow this legal duty often leads to an immediate trip to the courthouse.
  • Laches. Laches is a legal term that means a party sits on its rights too long. In other words, if a community association is aware that an owner has built a second-story addition to their home in violation of a CC&Rs view restriction, and took no action for two years, the owner may be successful in arguing that the association is estopped from pursuing an enforcement action.
  • Variances or Permits. If an association has dotted its “i’s” and crossed its “t’s,” but a homeowner has a valid reason for violating the restriction (such as the need for a “reasonable modification” based on a protected physical or mental condition under the Federal Fair Housing Act), the owner may be able to obtain a variance or permit allowing the condition to remain. Such allowances are rare relating to view restrictions, but I have seen a few in my career. If a variance or permit is granted, ordinarily, there is a sunset provision which requires the homeowner to return the structure or lot to its original condition upon conveyance of the property or when the exception is no longer required.
  • Subjective versus objective standard. Common interest development CC&Rs view protections and restrictions are often subjective, which allows for wide interpretation. The best written provisions are based upon an objective standard, such as “no structures are permitted with a height in excess of 16 feet from the natural grade of the Lot,” or landscaping, trees,
    bushes or foliage of any type shall not grow to a height about the roof line of
    the improvements upon any Lot.”

Based upon the money at stake, residential property owner
view disputes can be hard fought and emotionally charged. Seeking qualified
legal counsel to advise you early on in the process is imperative for finding a
successful resolution—whether through negotiation, alternative dispute
resolution (ADR), or litigation.