Introduction:
Property having an attractive view is far more valuable than property without any view. More than a swimming pool, fireplace, or good landscaping, a beautiful view can radically increase the fair market value of a piece of property and give lasting enjoyment to the occupants.
Given its value, one would expect protection of a view to be a property right that legally comes with the land.
It is not, at least in the United States. Absent a specific ordinance or agreement, there is no legal right to a view in the United States. Assuming zoning laws allow, your neighbor can build to block your view without restriction.
This article will discuss the basic law as to maintaining a view for property and what other remedies may exist to protect a view.
Basic Law:
Homeowners ordinarily have no legal right to a view or to light or air. Such a right may be granted by local ordinance or a written agreement between property owners, such as a subdivision rule.
The other possible exception is that a nearby property owner may not maliciously block another's view with a structure that has no reasonable use to the owner. Thus, if I need a storage shed for my tractor but build a three-story structure that blocks my hated neighbor’s view of the ocean, that could be interpreted by a court as a malicious attempt to injure my neighbor. The burden of proof of such intent would be on the person seeking to protect the view.
It should be noted that some foreign jurisdictions, such as England, do have view protection as part of their common law property rights, as well as rights to light and air protection. That approach was rejected by most legislatures and courts in the United States since there was a desire to protect the right to build on one’s own land and not have restrictions on such rights. The ethos of America to allow expansion and promote construction trumped the concept of protecting rights to a view.
The Role of Local Ordinances:
Local Laws on Foliage:
Some communities have enacted local ordinances that protect views. Most such communities are in locales with remarkable views, such as near the ocean or with views of mountains. Most such ordinances are limited to restricting foliage such as trees from blocking views rather than structures being built. It is vital to check the precise local ordinance that may exist in the locale.
The ordinances usually allow someone who has lost a view to sue the tree owner for a court order requiring them to restore the view. Typically, the one who wants to sue must first approach the tree owner and request that the tree be cut back. The complaining person usually bears the cost of trimming or topping, unless the tree was planted after the law became effective or the owner refuses to cooperate.
Certain species of trees might be exempt, especially if they grew naturally. Protection of certain slow-growing species, such as oaks, is not uncommon. But note that certain species of trees might be prohibited from being grown by local ordinance, such as trees that cause allergies or tend to harm other plants. Local laws might also forbid trees that are too close to a street or to power lines, to an airport, or could obstruct an intersection and thus cause accidents.
If a view is obstructed by a tree that is protected by environmental laws or local regulations, removing or trimming the tree may require obtaining a permit or approval from a relevant authority. In some cases, the request may be denied to protect the tree species or its habitat, and the property owner may have to explore alternative solutions.
If a property is located in an environmentally sensitive area, such as a wetland or a coastal zone, additional regulations may apply to protect the natural resources and ecosystems in the area. These laws may be enacted by the State or even the Federal government. These regulations may limit the options available to property owners for addressing view obstructions.
If a fence is blocking a homeowner's view, it might be in violation of local law.
Typically, local laws limit constructed fences in backyards to six feet high and in front yards to three or four feet. Height restrictions might also apply to natural fences, such as hedges.
When a view obstruction involves a historic or cultural landmark, both view protection and preservation of the landmark must be considered. In such cases, a balance may need to be struck between the interests of the property owner and the importance of preserving the landmark.
In some locales, view corridors are designated as protected to maintain the visual character of a neighborhood or cityscape. Development and construction in these areas may be subject to additional regulations to ensure that the protected view corridors are not compromised.
At times view ordinances require or encourage property owners to participate in mediation or arbitration to resolve view disputes amicably. This process involves a neutral third party who helps the parties reach an agreement on how to address the view obstruction. The property owner may need to follow specific procedures, such as filing a complaint with the local government or providing written notice to the neighbor, to initiate the process of seeking a remedy.
Zoning:
Local zoning or planning regulations normally control the size, location, and uses of buildings. Unlike ordinances passed by local government which relate usually to foliage, zoning relates to structures.
In a single-family residential area, buildings are usually limited to 30 or 35 feet high. Zoning laws also usually require a certain "setback," or distance between a structure and the boundary lines. They also limit how much of a lot can be occupied by a structure. For instance, many suburban cities limit a dwelling to 40% to 60% of the property.
Zoning laws are often strictly enforced and if your view was blocked by violation of that law, it is quite likely that a court will order it restored. If you are the one in violation of a zoning ordinance, it is vital to get an exemption to the application of the laws to your structure and expect that to be a difficult case.
Subdivision Rules Concerning Homeowners' Views:
Often, homeowners in subdivisions and planned unit developments are subject to a detailed set of rules called covenants, conditions, and restrictions (CC&Rs). Before one can purchase the property, one must sign a document that one will abide by them and that is binding. They regulate most matters that could concern a neighbor, including blockage of views by structures and trees.
Typically, a homeowner's association (HOA) rule might provide that foliage may not obstruct the view from another lot, or simply limit tree height to fifteen or twenty feet. If someone violates the restrictions, the homeowners' association has the right to take action ranging from a fine, removal of a privilege, or simply commence litigation. Often the HOA rules provide that if the HOA wins the litigation, the homeowner violating the rule must pay all attorney’s fees, including that of the HOA. Such fines and judgments can become a lien on the property.
Note that these HOA restrictions usually “run with the land,” so that any subsequent buyer of the property is equally bound to them, both in terms of what is prohibited and what rights one has to enforce them.
Easements:
One can have an easement for the use of property which can include restrictions on the use of another’s property. Often these easements are for ingress, namely, to have a road across another property or access to water. Such easements can include the right to views and can be obtained by agreement with the neighboring property owner. If obtaining such an easement, be sure to make it “run with the land,” e.g. be binding on all future owners of the property. Such an easement must also be recorded if one wants to protect such a right. The easement often requires that the holder purchase that right from the landowner and such easements can be bargained for with substantial costs being involved.
Prescriptive easements which are easements that arise from long use do not apply to views since under most United States law, no such easement exists minus statute or agreement.
Common Sense: Anticipating the Problem:
The best time to determine how to protect one’s view is before one buys the property. As part of your due diligence, determine what rights, if any, you will have to protect the view. Do not under any circumstances assume your view will be permanent absent statutory or contractual obligations. Do not rely on assurances that the view has lasted decades or there are no current plans to build nearby. Unless zoning or ordinance can protect you, such plans can change at any time, particularly in urban settings. You may be buying what you think is a view of the ocean or Bay and end up having a view of a larger building across the street.
Some jurisdictions require disclosure of threats of a view in the documents accompanying a sale of property, but do not rely on such disclosures: do your due diligence.
Assuming there are no existing protections, and you cannot obtain any by negotiation, then you must assume the view is transitory and purchase the property with that fact in mind. Assuming a neighbor is willing to negotiate an easement with you as to the view, then realize that until it is in writing and recorded, it is not safe and factor the cost of the easement into the cost of the property. Do not buy the property and then hope to negotiate an easement or right unless you are willing to own the property for the price offered without the easement.
Keep in mind that even if you do not value the view highly your next buyer may very well consider it critical. You must assume that your sales price will be at a value without the view even if you purchased it with the view value.
The right to improve one’s property as one sees fit is a highly valued property right in the United States. Indeed, when one “sells” an easement to a view, one necessarily lowers the freedom to use the property as one sees fit and can expect some future buyers to consider the property less valuable. Both parties to such a negotiation have to carefully consider the impact on the future worth of the property.
Conclusion:
What you see is not necessarily what you get when purchasing a property with a view. It is vital for the potential buyer to determine what rights to the view may exist by contract or statute and simply talking to the neighbor and finding out he or she has no current plans to improve is seldom enough.
One client purchased a condo on the twentieth floor in a high-rise with a magnificent view of San Francisco Bay and determined that the property across the street was destined to be only a five-story tennis club.
But when Covid hit, the owner of the tennis club had to file bankruptcy, and an out-of-state developer determined to build a thirty-story structure containing both stores and condos. While our client attempted to block the construction before the various planning boards, she found it difficult to object when she, herself, lived in a thirty-story building. Eventually, her view became a series of windows of the neighboring building a few hundred feet away.
Put simply, if you want rights, have them protected by agreement or statute. If not, your rights will be seconded to the property rights of the neighbor.