Many view rights cases are effectively decided at the TRO or preliminary injunction stage, to stop construction of the new or bigger home or structure. Thus, both sides have to present their best evidence at the beginning of the case.
Tavangarian v. Florman (Jan. 25, 2012, 2d Cir.) 2012WL208061 (B227269) (not reported in Cal. Rptr. 3d) is example of the complex and emotionally charged nature of most neighbor v. neighbor and view rights cases. It also confirms that view right cases require mastering the intricacies and subtle nuances that can make or break your client’s case.
Plaintiff and defendant both own properties with stunning ocean views in the Marquez Knolls area of Pacific Palisades, nested right between world-famous Malibu and Santa Monica. The properties in the Marquez Knolls area arf subject to recorded covenants, conditions and restrictions (CC&R’s). Section 11 of the CC&R’s provides: “[N]or shall an ‘tree, shrub or other landscaping be planted or any structures erected that may at present )r in the future obstruct the view from any other lot …. ” In Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, the court held Section 11 provides that no property owner can construct a structure that “unreasonably” obstructs the view of another proper owner. (Id. at p. 629.)
Since Zabrucky, the fight in most view right cases is what does “unreasonably” obstructs means.
In Tavangarian, the plaintiffs sought immediately upon filing the lawsuit a temporary restraining order to stop the defendant’s construction of new home. The plaintiffs claimed that the view from their multimillion dollar home would be impacted by the new structure. Ironically, the plaintiffs are well known builders, who themselves have been defendants in view rights cases.
Unfortunately defendant’s construction provided no evidence at the TRO hearing and the court granted the injunction. Defendant retained new counsel for the actual preliminary injunction hearing. At the preliminary injunction hearing, defendants counsel provided a full evidence package for the court in the form of expert testimony, experienced surveyors, and professional photographers. As the Court of Appeal put it:
There was substantial evidence supporting the trial court’s express and implied findings that the construction of the house on Defendant’s Property did not unreasonably obstruct the views from Plaintiffs’ Property, either before or after the lawsuit was filed. This evidence consisted of statements in the declarations filed in support of defendant’s opposition to plaintiffs’ motion for preliminary injunction, as well as photographs attached thereto.
In a unanimous decision, the California Court of Appeal affirmed the trial court’s determination that a defendant who was sued when trying to build a new home was the prevailing party and therefore entitled to his costs of suit in a contentious view rights case.