When choosing a place to live, a person buying a home may consider many different factors including whether it offers an attractive view of the surrounding landscape. This is particularly true if the home is located in an especially scenic area with views of such panoramas as the ocean, mountains or forests.
Also, the value of a particular home may depend to a great degree on the views of the surrounding landscape. In this case, there can be problems if a person’s neighbor has built something on their property, such as a fence, which obstructs the view of the surroundings.
Depending on where a person lives, they may have different legal options. The issue can be quite complicated as there may be state, county, or municipal laws that apply to it. In addition, there may be homeowner association covenants and bylaws that address the topic.
What Are Easements?
One option a person has is to purchase an easement from their neighbor. An easement is a right, which gives one person a non-possessory interest in another individual’s land. This means that if a person has an easement in another person’s property, they may not have a right to occupy the land themselves. They do, however, have the right to use some part of the property for a particular purpose or to control the use that others make of the property.
So, an easement could provide that no structures would be built on neighboring property where they might obstruct one property owner’s view from their own property. This would be considered a negative easement, because it would be the right to prevent another from performing an otherwise lawful activity on their own property, e.g. building a fence.
A person can use an easement to protect their view of the surroundings. If enforcement of the easement became necessary, the owner of the easement could seek an injunction to prevent the property owner of the encumbered property from violating the easement and building a fence that obstructed the easement owner’s view.
A person who wanted to propose negotiating an easement in the property of a neighbor would want to consult with a land use and zoning attorney for help.
What Are View Ordinances?
Cities and towns which are located in areas with exceptional scenic views often have laws called “view ordinances”. They usually apply only to trees on neighboring properties and do not address other obstructions.
The view ordinance typically allows the person who has lost their view to an overgrown tree to sue the tree owner to require them to maintain tree trimming to restore the view. The ordinance often requires the person who has this problem first to ask the tree owner to restore the view, either through tree trimming or tree removal.
Per a view ordinance, the person making the request might be required to pay for any tree trimming or tree removal. If the owner planted the tree after the view ordinance was enacted or refuses to cooperate, however, the person making the request would not be required to pay for the tree work.
Other types of state law, municipal ordinances or county codes might be of more help to a person whose view has been obstructed by a fence and not a tree. For example, limitations on the height of fences might solve the problem. A city or county ordinance that limits fence heights in residential areas, often to less than six feet in backyards and three or four feet in front yards, might apply to the problem.
Zoning laws in a particular locality usually regulate the size, location, and uses of buildings according to zoning codes. It is common for single-family residences to be limited in height to thirty or thirty-five feet. Zoning laws impose other restrictions on the size of structures relative to the size of the property as well. There might be a provision in a local zoning ordinance that would disallow a particular fence
The state in which residential neighbors live might have a law governing so-called “spite fences”. A spite fence is a fence that has been constructed out of malice harbored by the builder towards a neighbor who is negatively affected by it. The malice might have arisen because of some other conflict between the two neighbors. In any event, state nuisance law might offer a remedy for the person whose view is ruined by the spite fence.
Under the law of private nuisance, a court would apply a balancing test. The court would weigh the negative effect of the fence on the homeowner whose view is obstructed to the value of the fence to its owner. So, state law, as well as local ordinances, zoning laws, or homeowner’s association regulations may have something to offer a homeowner whose view has been obstructed by a fence.
Just to complicate the issue, however, laws vary from state to state. The state of California has a statewide building code that allows fences and only regulates their height, the materials of which they are made and the methods of construction in the case of masonry fences. Fences must be made of fire-resistant materials.
Another possible source of limitations on the height and location of fencing might be found in the rules of a homeowners’ association. In some parts of the country, the homes in many neighborhoods are part of a homeowner’s association (HOA). These are legal entities, technically a kind of corporation, that consist of member homeowners.
An HOA has a board of directors whose members are elected from among the homeowners in the HOA community. They are legally obligated to maintain the grounds, provide master insurance coverage and community utilities, as well as manage the overall finances of the building community.
An HOA has covenants and by-laws which set forth the rules for the community. They commonly include so-called “architectural covenants”. These may limit structures to remaining the same and prohibit alteration of their appearance in any way. Sometimes the covenants and by-laws may limit the structures that can be erected on property surrounding a housing unit. They may deal specifically with fences, and such things as where they can be located, how high they can be, what types are acceptable, and whether they can be erected at all.
Should I Contact a Lawyer?
If you have disputes with your neighbor about how fences affect the views from your house, it is important to consult an experienced real estate attorney near you. An experienced attorney can inform you of any help that local ordinances and codes can offer. Your attorney can also determine whether your home is part of an HOA with covenants and by-laws that can give you relief from a neighbor’s fencing.
An experienced real estate attorney will know how to seek enforcement of the different types of laws that may apply to the situation. Seeking enforcement of HOA covenants and by-laws may involve an entirely different process than enforcing local zoning codes or municipal ordinances. Your attorney may advise you that your best bet is to attempt to negotiate a resolution of the problem, if there is no help to be found in ordinances, codes or HOA covenants and by-laws.
Resolution of a problem with a neighboring fence obstructing a view may get complicated. Your best option is to start by consulting an experienced real estate lawyer.
