Avoid Disputes about View Protection Bylaw
Homeowners who have paid a premium for housing that boasts sunset or city skyline views, or are situated in areas noted for their scenic beauty, feel they should be entitled to enjoy them—unfettered by other structures or foliage that might later get in the way. To this end, some of the most notable community association litigation cases have dealt with view protection bylaws. Those cases involved owners who have paid for a specific view that they can no longer enjoy, or that previously made their unit more valuable and unique than others, suing the association. Here’s how you can keep owners with a pricey view happy.
Passing specific protections can help you avoid a dispute. If your association doesn’t already have one, it should consider passing a view protection bylaw that prohibits owners from building or planting anything that would block other owners’ views.
Carving out some well-defined and key rights for your association in that bylaw is crucial. It’s important to specify two major things in your bylaw: (1) at what point in time a view is “protected”; and (2) whether the association must enforce the bylaw that protects the owner’s right to that view. A major right that you should carve out is that protected views can’t be established post-construction. Sometimes members might add a deck, for example, after construction on their unit is finished, and then claim that someone else’s unit is blocking their newly created view from the deck. This could even happen years after the unit was originally built. To avoid this type of never-ending difficulty, say in your bylaw that protected views can’t be established post-construction.
Another right should give the association some leeway, by specifying that the association has the right not to enforce the bylaw. In some situations, the board might decide that it’s in the association’s best interests not to enforce a view protection bylaw—for example, if the specific facts of the case make it a tough one to win.
For tips about defining three other important terms, and a successful view protection bylaw that can shield you from a protected view lawsuit, see “Put Five Key Details in View Protection Bylaw,” available to subscribers here.