The generally-recognized rule in Arizona is that "obstruction of a landowner's view does not constitute a private nuisance absent a statute or an easement to the contrary." See Van Baalen v. Jones, 2014 WL 3881985, *3, ¶ 13 (Ariz. App. July 31, 2014). Put another way, a landowner does not generally have a right to a scenic or unobstructed view from his or her property unless there is a statute or easement granting such right. To determine whether a particular landowner has such a right, we can look to any deed restrictions or easements recorded against the landowner and any neighboring landowner's properties, as well as any community association's property.
In the absence of a statute or express easement granting the right to an unobstructed view from a landowner's property, the landowner would have to prove the elements of an implied easement: "
- (1) the existence of a single tract of land so arranged that one portion of it derives a benefit from the other, the division thereof by a single owner into two or more parcels, and the separation of title;
- (2) before the separation occurs, the use must have been long, continued, obvious or manifest, to a degree which shows permanency; and
- (3) the use of the claimed easement must be essential to the beneficial enjoyment of the parcel to be benefited." Rohde v. Beztak of Ariz., Inc., 164 Ariz. 383, 387 (App. 1990). In other words, a landowner must have a longstanding view over an adjoining property that predated the separation of the two properties. Upon separation, the landowner must have retained this right to the detriment of the adjoining landowner (ideally by a recorded no build or view preservation easement), and maintaining the view must be essential to the landowner's use and enjoyment of the property.
We often hear from landowners that an obstructed view diminishes the value of the landowner's property. Without more, the mere possibility that an obstructed view might diminish a landowner's property value is probably not enough to entitle the landowner to any injunctive relief from a court ordering removal of the obstruction. See Van Baalen, 2014 WL 3881985, at *4, ¶ 21–22 (finding that the plaintiff was not entitled to an injunction because he "only speculated his property value may decrease if [his neighbors] moved back in and replanted trees."). If, however, a landowner were to demonstrate with a credible appraisal that an obstructed view has already caused a substantial diminution in the property's value, that might constitute the basis to argue for injunctive relief. However, these are claims better directed at the adjoining property owner and not a community association.
More often than not, a community association's declaration of covenants, conditions and restrictions ("CC&Rs") do not contain any provisions that would obligate the community association to preserve a particular property's view. While we do see provisions in CC&Rs that generally provide that one of the purposes of the CC&Rs is to protect the value and desirability of the "Property" or the "Project," oftentimes these terms refer to the entire community—not individual properties on a case-by-case basis. As such, community associations are not automatically obligated to protect the value of one property to the potential detriment of another property in the community.
Another consideration is that if the offending improvement (whether landscaping or a man-made improvement) that is obstructing the view of another property is not located on the community association's property, the community association may not be able to force the offending property owner to remove the improvement, especially if the community association originally approved the offending improvement. There might be occasions where a community association could take action, but these occasions generally occur when an offending improvement threatens another property, and "threatens" generally implies property damage, not obstructed views.
If an offending improvement is located on the community association's property, we may have a different outcome. Depending on the specific improvement, a community association could voluntarily remove it to preserve the landowner's view. If considering this option, we recommend the community association consult with its legal counsel to ensure that such removal does not inadvertently grant the landowner a protected view.
Issues involving whether or not a community association must protect a landowner's views are specific to each property. As mentioned above, there must be an easement, statute or other recorded instrument (e.g., CC&Rs) that grants a landowner a protected view. Absent this, a landowner may lose a particular view.
Originally published March 26, 2024.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.