View Covenants: How Far Can a HOA Go?
Many homeowner associations have covenants within their CC&Rs that limit a homeowner's right to restrict a neighbor's view. For a view covenant to be legally enforceable, it must be included within a validly recorded instrument, such as the association's declaration or plat. The covenants may include structures (e.g., homes, detached garages, sheds, fences, etc.), vegetation (e.g., trees or bushes) or even vehicles. The view covenants also may be absolute or discretionary.
An example of an absolute view covenant would be a "25-foot height restriction on all structures constructed on the plat." A discretionary view covenant would be a "restriction on trees or other vegetation that impairs the view from an adjoining owner's property." Both absolute and discretionary view covenants must be reasonable and applied uniformily. It should be no surprise that there are many more disputes and litigation involving discretionary view covenants than absolute covenants.
To enforce a view right, a homeowner associaton may seek injunctive relief from a court. Time ordinarily is of the essence. For example, if an owner is in the middle of constructing a home that exceeds the view covenant's height restriction, the plaintiff association would want to move without delay. If the association delays for an unreasonable amount of time in seeking judicial intervention, the offending homeowner may be able to rely upon a laches, acquiescence or waiver defense. What this means is if the plaintiff had constructive knowledge of the offending party's actions and through his words or conduct represents that he will offer no opposition, then the plaintiff may be barred from stopping the homeowner's conduct, or at least be limited in obtaining the relief sought.
I have found that many boards delay enforcing view restrictions, and often these delays prejudice their abilities to obtain successful outcomes (or at least efficient and timely successful results). Either these associations think (hope) the offending party will come around, or they do not want to incur legal fees in hiring an attorney. Remember, most CC&Rs contain provisions for the Association to recover its attorneys' fees and costs incurred in enforcing its governing documents.
If your association would like more information on creating or enforcing view covenants, feel free to contact Barker Martin, P.S. by selecting the "Contact" tab at the top of this blog page.