UPDATE 2.9.23: Since the Court of Appeal’s decision in June 2019, there have been new cases interpreting the Court’s analysis. More information here: Post-Eisen Cases
UPDATE 9.12.19: The Supreme Court has denied the Petition for Review and Request for Depublication. More information on the Supreme Court case can be found on the Court of Appeal website.
UPDATE 8.10.19: The Eisen’s and Marquez Knolls Property Owners Association, Inc. are seeking to have the California Supreme Court grant review, which it does in less than 5% of the cases. Nonetheless, affected and interested property owners should support the fight with their own “amicus” letter to the Court” Marquez Knolls Property Owners Association 8/9/19 Amicus Letter
The Court of Appeal just gutted the Marquez Knolls CC&Rs. Eisen v. Tavangarian – filed June 20, 2019, Second District, Div. Seven , full text click here.
Paragraph 11 of Marquez Knolls CC&Rs provides:
“No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front set-back line nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of any lot.”
The Court of Appeal framed the issue as: “Does paragraph 11 of the CC&R’s … apply to alterations or renovations to existing homes?”
To summarize the 34 page decision, the Court specifically held: “Paragraph 11 does not restrict renovating or altering existing residences.” But the Court also held that the “Portion of the Judgment Requiring the Street-facing Hedges To Be Trimmed to a Height of Three Feet or Under Is Affirmed.”
So Paragraph 11 applies to trees but not additions or structures?
COMMENT: The decision does not make sense. If trees cannot obstruct a view, does it make sense that buildings can? Hundreds of homeowners have relied on Paragraph 11 ‘s clear intent to protect their views.