Prescriptive View Easement

[CertifiedRes]

Is a prescriptive view easement possible? If a property has been benefited by the open and continuous use of a view over a neighboring property without the permission of the neighboring property's owner for say 10 to 20 years, is it possible that an unrecorded view easement exists?

I am doing a property right now where this situation is in dispute. The next door neighbor just planted palm trees where there had not been any since the subject was built. The palm trees partially block the subject's views where they had been mostly unobstructed for many years. The owners of each of the property are now in a legal dispute over view rights. Has anyone had experience with such a situation? The view is a good ocean and city view.

 

[Restrain]

This is a legal question and it depends on the laws of the particular state, locale, etc. I know of one subdivision around here that was built on a hill sloping down to a lake. Each lot has a height/tree restriction so that the property above it has a view of the lake. Conversely, in non-restricted areas, trees, two story homes, etc can be built so as to eliminate views.

I note that you are in California, so there should be some case law regarding this. I would check with your city zoning board and see what they know. If this is in regards to the potential lawsuit, be guided by the requirements of the attorney and build your SOW accordingly.

 

[Mike Boyd]

I agree with Restrain. Additionally, you might check for deed restrictions. However, to me it does not meet the requirements for a prescriptive easement.

 

[CANative]

I'm not a real estate attorney, just a dumb country appraiser. But IMO, the only shot this guy has if there are CC&R's which control items which block a view.

 

[Elliott]

As I recall, California adopted prescriptive solar easements law so when
a building sets up all their solar panels, a property next door couldn't build
in a manner to prevent their 'established' access to those solar rays.

I know lots of HO have fights over views and that copper nails have killed
many healthy trees. I once had an assignment where a group of HOs hired
a landscaper to cut down a row of trees to "re-create" their views and I got
to estimate how much value they had gained by improving their views.

Sometimes setbacks are established on adjacent view lots to preserve views
to the benefit of adjoining lots.

 

[CANative]

I have an additional question that's sort of off topic but might lead to more discussion and clarify the original issue.

I used to do lot appraisals in a large PUD. Some of these were very steep hillside lots. For properties on one side of the road the views were incredible. On the other side of the road they were incredible if the lot across the street was still vacant. But what is the current value of one of those lot's given the fact that their future view might be obstructed if the lot across the streets was developed? The PUD has building height restrictions but no specific view easements. The view from across the street was incredible because the lots are so steep that you can see the lake and valley below view the slope. So it wouldn't take much building height to block at least the lake view.

 

[Smokey Bear]

View easements have to be purchased. Anyone who buys property with a view had better research CC&Rs and zoning info to make sure "their" view can't be osbstructed by someone else. Otherwise, SOL, as it should be.

Also, I heard about houses in a golf course community - no one made sure that the golf course would stay there. Golf course went under, owner sold it to a developer. No recourse, the homeowners should have made sure they (or the HOA) had rights to limit the development as something other than another golf course.

Ditto for anyone buying property next to 'open land' - make sure it's designated as such by the governing agency.

Buyer beware, in this situation.

 

[John78729]

But what is the current value of one of those lot's given the fact that their future view might be obstructed if the lot across the streets was developed?

We run into similar situations here where homes at the edge of a subdivision back to a field or farmland and are listed as a "greenbelt" lot. If the area that composes the greenbelt is not designated as protected from development, it could be developed or obstructed in the future. I usually don't consider it to have an "upgraded" view and include a comment to explain why adjustments aren't made. I did one last month, however, where the subject originally had a golf course view across the street. A developer purchased the property across from the subject and subdivided it, but was only developing every other lot. As a result, every other house on the subject's side of the street had an obstructed golfcourse view. I did some research, found out that the vacant lots were designated to be left vacant to preserve the openness of the golfcourse, and added a comment explaining what I'd discovered. I was fortunate that there was a recent sale in the same boat as my subject to help support my conclusion.

In your case, I would take a look at the plat for the subdivision and note if the lots across from the subject are designated for future construction. If so, I think it's reasonable to assume that they will be developed at a future date and consider the subject's view to be similar to the lots with views that are currently obstructed. My comment in the report would state that, while views are currently of the lake/hillside/countryside, these views may be obstructed at any time due to the potential for construction across the street from the subject and that the subject's views are therefore considered to be more comparable to currently obstructed views.

 

[CANative]

The last time I appraised one of "those" lots was mid-2006. Good support for a $90,000 value. Today you couldn't sell one for $9,000. View or no view.

 

[David Mescon]

Interesting question... There is no universally accepted definition of a prescriptive easement, and California case law is somewhat circumspect on the subject. While such an easement would meet some of the generally accepted criteria attributable to a prescriptive easement, such as notorious, continuous and hostile, (notorious being obvious, and hostile being, in this instance, accidental), it would not necessarily be adverse to the rights of the true owner of the servient tenemant. Both parties have freely enjoyed the view for a protracted period of time, without any apparent adversity to the true property owner.

California law, additionally, is quite vague about air rights easements. I have substantial experience with air rights related inverse condemnation cases. I have also worked on a number of residential (loss of) view related diminution cases, but these were all within the context of planned communities, with specific architectural guidelines intended to preserve individual owners' view amenities and/or peaceful enjoyment of their properties, and were related to the HOA's lack of enforcement or selective enforcement of their own covenants.

I would be very interested in hearing from anyone who has specific experience with any type of non-surface rights related prescriptive easement, (i.e., air or ground, (subsurface)), rights.