On June 20, 2019, MKPOA was informed that the appellate court chose not to enforce a view restriction in CC&R paragraph 11, recorded in 1962, and instead ruled in favor of a neighboring property owner’s free use of land (Eisen vs. Tavangarian). It interpreted Paragraph 11 to apply to trees and hedges view obstructing, but not to obstructions due to remodeling/additions to the main house.
Greenberg Glusker blog sums up the essence of the problem: Paragraph 11 of the CC&Rs prohibits “any structures erected that may at present or in the future obstruct the view from any other lot.” The complaining neighbor in the Eisen vs. Tavangarian case prevailed at the lower court level when the judge found that various improvements to a newly renovated $9.4 million home “unreasonably obstructed” the plaintiff’s ocean views.
The appellate court reversed the trial court’s decision. It framed the issue as a seemingly straightforward question: “Does paragraph 11 of the CC&R’s apply to alterations or renovations to existing homes?”
In 2005, the same appellate court, in a case entitled Zabrucky vs. McAdams examined nearly identical CC&Rs of a neighboring tract in Marquez Knolls. That court held that paragraph 11 applied to any alteration or remodel of an existing dwelling that “may at present or in the future unreasonably obstruct the view from any other lot.”
Over a decade later, the Eisen court stated that the Zabrucky majority misread paragraph 11 of the CC&R’s. The Appellate Court ultimately concluded that paragraph 11 restricts only building a new structure, and not making alterations to an existing one.……MKPOA became alarmed that the Eisen appellate court decision and its reasoning could weaken view protection for all Lachman CC&Rs with its interpretation of Paragraph 11, that has effectively removed view protection when your neighbor remodels the house. The threat is that tear-down/renovation has become the “new normal” in Marquez Knolls.
Since June 20, 2019 MKPOA has written an Amicus Letter to the Appellate Court to reconsider the case - denied; has hired an attorney to submit an Amicus Letter to the California Supreme Court to review the case - denied; is investigating the option to revise the language in the CC&Rs to make it “court proof.” To read more about MKPOA action defending CC&Rs: