Where Did My View Go? Homeowners’ Rights to Easements for Air, Light, and Views.


Simon Offord

by Simon Offord on April 16, 2012

in Neighbor Issues, Real Estate Law

One of the most important features for some people in deciding whether to purchase a home is it’s view. Palo Alto and the San Francisco Bay Area are no exception. A good view can be worth hundreds of thousands of dollars, so we would assume it is something that is automatically protected, right? Unfortunately, in most cases, it is not.

The old English doctrine that gave a landowner an easement over adjoining land for the passage of light and air was repudiated long ago in California. As a general rule, California landowners do not have a right of access to air, light and view over adjoining property. However, as with most laws, there are certain exceptions that may apply.

Express Agreement

The right of a landowner to air, light, or an unobstructed view may be created by private parties through the granting of an easement. This would require the express grant from one homeowner to the other in writing. One may not obtain such a right through prescription or implication.

The right to air, light, or an unobstructed view may also be obtained through the adoption of conditions, covenants, and restrictions (CC&Rs). Thus, if you are an owner of a condominium, or more likely, a home in a subdivision, the CC&Rs may provide that neighboring homeowners may not build anything to obstruct another’s view. This can be as far reaching as requiring fences or foliage to be a certain height and not made or planted in such a way to prevent others from seeing through them.

Created By Government Entities

The right of a landowner to air, light, or an unobstructed views may be created by the legislature. The most predominant example is the Solar Shade Control Act (Pub. Resources Code, §§ 25980 et seq.), which provides limited protection to owners of solar collectors from shading caused by trees on adjacent properties.

Local governments may also adopt height limits to protect views and provide for light and air, including by way of building codes.

However, neither the Solar Shade Control Act nor violations of local building codes typically create a private nuisance cause of action entitling one neighbor to sue and obtain relief from the other (absent exceptional circumstances). Thus, the injured homeowner would have to rely on the government agency to enforce it’s own restrictions.

If you feel your rights to air, light or view have been violated or would like to establish those rights, or if you have any other questions about real estate legal issues, contact the Law Offices of Peter N. Brewer at (650) 327-2900, or on the web atwww.BrewerFirm.com.

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{ 2 comments… read them below or add one }

avatar Wesley M. April 22, 2012 at 3:12 pm

This is very informative. I believe the residents have the right to air, light and view. Right now, I’m not enjoying those. Which one should be prioritized first?

-Wesley

avatar Susanne Forstner May 3, 2016 at 5:52 pm

Hi, there is an encroachment with an easement for light and air. (The neighbor is the dominant party and the land owner of both lots build his duplex on our property with an easement of 5 feet that runs along such property improvement) When we bought our property it was disclosed to us after we had signed the mortgage. Now we are having problems because the previous owner of our house had placed a fence on his property – even 7 feet away from the neighbors improvement. We found out that the fence was infested with termites that are coming from his house and had to take it down. Since he only has this easement for light and air (on the deed since 1976 – neighbor build his house in 54 – our house was build in 1977) and did not use the 5 feet continuously for 5 years – it is rented out and not every tenant used it to place their garbage cans/walk along this easement to do so, do we have to let them use it/ they even build a gate on it but we are paying the taxes?! We had talked to a lawyer (He was not really interested in our problem) and he said that it is an Express easement and this is where I disagree. From what I understand this easement is a negative easement and does not give the neighbor the right to use or build on it! What is your point of view?
Thank you,
S. Forstner

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