LAYING DOWN THE LAW – HOW TO PROTECT YOUR VIEW
July 1, 2020
Christopher J. Charles
Attorney, Provident Law
Many people purchase property in Arizona with an eye for the surrounding aesthetics. Mountainsides, valleys, and rock formations in the environs of one’s home can, in fact, be a large reason that individuals decide to purchase a particular property, or, for that matter, that business-owners purchase or lease a particular property. (Think, for example, of a restaurant that provides a view of Camelback Mountain. That ambiance may well be a strong reason for such an establishment’s success.) So, when an adjacent property owner decides to develop their property so that it threatens the view, some property owners or tenants will wonder whether they have any recourse. The answer is “probably no,” with a limited yes. The “yes” portion has to do with what are known as “view easements.”
Easements are legal rights one property owner has concerning the property of another. The most common of these in Arizona is an access easement (which falls under the category of “affirmative easement”)—by which an owner of the “dominant tenement” property is afforded physical access to the “servient tenement” property by crossing the adjacent property.
Less commonly, property may also be subject to a restrictive covenant in the form of a “view easement.” While the property laws in Arizona long tended to favor free use of property over the strict enforcement of restrictive covenants, in a 2006 case called Powell v. Washburn, 125 P.3d 373 (Ariz. 2006), the Arizona Supreme Court instead adopted an approach laid out in the RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES (these “Restatements” are model laws created by legal experts with an eye toward homogenizing laws to create more predictability across state lines.) The Court chose to hold that “restrictive covenants should be interpreted to give effect to the intention of the parties as determined from the language of the document in its entirety and the purpose for which the covenants were created.” The Court’s decision to take this tack came down to the reason that, in fact, Arizona courts had long been favoring the intent of the parties as to these covenants, despite giving lip service to favoring free use; and that they wanted to bring Arizona in line with the trend in courts across the nation of “recognizing the benefits of restrictive covenants.” Id.
Thus, per the Powell v. Washburn case, property owners are welcome to negotiate a “view easement” from an adjoining property: this would entail drafting a contract between the parties that the property owner who might have the right to obstruct the other property owner’s view will not do so now or in the future—making that property owner’s use of the land subject to the other property owner’s view easement (this falls under the category of “negative easement”).
Negotiating a view easement now or in the future only serves as a solution to issues that may occur in the future. It is rarely a remedy for a structure that has already been built or trees that have already grown (though it might be possible for the affected owner to make a money offer in exchange for creation of an easement and alteration of the property conditions and see how far that gets them).
Some wonder whether, in the absence of such a view easement, another property obstructing their property’s view might fall under “nuisance” law—given that, for example, in the above example of a rooftop restaurant, the building of a parking-lot tower that obstructs the mountain view has the potential to materially diminish the desirability of the restaurant’s ambiance, and possibly its success. The answer, in Arizona, is no: the blocking of a view is not considered a valid claim for nuisance, and there is no legal remedy for it unless the municipality has passed a statute or a homeowners association has written it into its rules.
If you or someone you know has questions concerning easements, contact Mr. Charles At Provident Law. Our real estate attorneys represent parties on either side of real estate and financing transactions, including buyers, sellers, landlords, tenants, lenders, borrowers, trustees, guarantors, shareholders, partners, and others. We advise, structure, negotiate, and document a variety of real estate and financing transactions, including leases, purchase and sale agreements, financing agreements, and development agreements for a variety of commercial and residential projects. Contact us today and learn how we can help.
Christopher J. Charles is the founder and Managing Partner of Provident Law®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS® (the “AAR”). Mr. Charles holds the AV® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions. Christopher teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.