Don’t rely on promises of great views
Question: When we moved into our home over 22 years ago we paid a premium for what was advertised as “a 180-degree unobstructed view.” The CC&Rs clearly state that the vegetation will be maintained “so that the view of the owner is not unreasonably obstructed.”
However, that document does not define what “unreasonably obstructed” means, and today, we are in constant battles with the board over interpretation of that phrase. The board has issued new rules, with certain percentages of obstruction triggering the removal or trimming of vegetation. It has also proposed to define view as “the view which exists across the rear lot line between the prolongations of the side lot lines of the lot. In no event shall ‘view’ include any side view.”
Based on this new rule and the board’s proposed definition, the only “view” at issue is far narrower than 180 degrees and only some thinning of vegetation that affects it would be done. We paid extra for a wider view that has all but disappeared. Answer: Your options to deal with this issue are limited because your governing documents are not more specific, and the association is governed by an elected board that is vested with decision-making authority. Even if a specific guarantee was made to you verbally by the seller, you cannot enforce that guarantee against the association, only the seller. And unless the escrow documents include very specific details for the purchase of a “view,” paying that premium was for naught.
California courts have held that in the absence of fraud, a buyer’s acceptance of a deed executed in consummation of an agreement merges all prior negotiations and agreements relating to that sale into the recorded deed. (Christensen vs. Slawter (1959).) That means only the terms of an offer and sales contract that are included in the deed are legally enforceable. Anything of significance not transferred to the deed may be lost forever.
Also, property sale advertisements, such as “Great Views,” are rarely enforceable because they are not a substitute for an association’s governing documents. It is the buyer’s burden to perform due diligence prior to making an offer. Read and understand the association’s governing documents to determine whether it details the board’s obligation to protect owners’ views.
Assuming that your seller and escrow documents did not guarantee you a specific view, your options are limited to dealing directly with the board and challenging their new rules and definitions.
It appears that the ambiguity in your governing documents caused the board to propose a definition for the word “view.” Although the board is free to interpret ambiguities, it cannot merely adopt a definition as a way of amending the covenants, conditions and restrictions. Such an amendment requires a vote of the titleholders, revisions to the governing documents and recording the change with the county recorder’s office.
Similarly, the board cannot adopt rules that contradict the governing documents, or that render any of its provisions moot. If your current CC&Rs require the board to maintain vegetation so that your view is not “unreasonably obstructed,” then the board’s rules must be reasonably related to that requirement. A rule that requires obstruction to reach 90% is not only vague but is unreasonable on its face, while a 10% trigger may or may not contradict the intent of the language in the CC&Rs. Ambiguities like these create a lot of discretion for the board.
You and the other titleholders may want to push for a revision of the governing documents to remove the extra power granted to the board by this language, or 5% of the titleholders may call a special vote of all the owners to reverse a rule change, which is provided for under Civil Code section 4365.
On the other hand, if all you have to rely on is the seller’s verbal representations, then you are likely out of luck.
If the board disagrees with your interpretation of the governing documents, you can request alternative dispute resolution to resolve the dispute. You may also file a lawsuit to have a court determine the proper meaning of “unreasonably obstructed.”
Be warned that California courts historically grant a lot of deference to a board’s interpretation of association documents, unless you can prove that the board acted arbitrarily or capriciously — a costly exercise to learn that sometimes there’s no room with a view.
Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.