View Restrictions – Part I

“A man’s home is his castle.” These words, first uttered by Clarence Darrow
in defense of a man on trial for defending his home, are now deeply rooted
within each of us privileged to own a home. The bedrock belief, however, is projected by some in the context of imposing view restrictions to embody a different notion: that “your home is actually our castle.”

Property values reflect the existence, or absence, of a
scenic view. Simply put: view property is worth more, as buyers spend more to
buy view property. Having paid for the view, owners often believe they have
purchased a perpetual right to the continued existence of the scenic view for
their “castle.” Regrettably for many of
these owners, they are surprised to learn the view that caused them to buy
their home, the one they paid extra for, is not guaranteed. With some limited exceptions, in California
there is no common law view protection for homeowners.

The reason for this doctrine is quite simple and relates
back to English common law. In England, where much American law was derived,
property views were often protected. But in the late 19th Century, when America
was in its territorial expansion period, a contrary concept developed. The seminal 1898 California Supreme Court
case of Kennedy v. Burnap turned English common law on its head. The Court ruled that:

“The simplest rule and that best suited to a country like
ours, in which changes are taking place in the ownership and the use of lands,
is that no right [to views] can be acquired without express grant of an
interest in, or covenant relating to, the lands over which the right is

During that period as California was experiencing
substantial growth, the Court did not want to establish a policy embracing view restrictions that would
interfere with this economic expansion. The Court feared preventing landowners from doing anything, like
limiting structures or tree plantings, would impinge on further development. In
other words, the Court sided with the rights of a man to his castle, versus
giving rights to a landowner that restricted his neighbor’s castle.

California courts have continued to follow the Supreme
Court’s precedent in Kennedy v. Burnap through the present day. [As a side note, it will be interesting to
see how the courts will interpret the limitation on use of a homeowner’s right
to offer short-term rentals, a very hot topic in today’s world—whether they’ll
side with the economic expansion and free use of land argument of Kennedy, or
choose a more conservative English common law policy. That topic will be
addressed on another blog post on another day.]

As a result, today in California, there is no view right of
a landowner–no inherent view restrictions–except in three conditions: (1) express agreement between
landowners; (2) easement or similar right established when the deed was created
through Covenants, Conditions and Restrictions (“CC&Rs), or similar
servitude recorded document; or (3) governmental ordinance. These exceptions
are discussed in the companion post: “View Restrictions–Part II: HOA Covenants” found here.

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..