Imagine you have been enjoying your beautiful Maui condo for years, then you notice a palm tree creeping into your ocean view. You may think that there is a simple fix to restore the view- which was an important part of choosing this particular condo. However, most homeowners will find that they don’t have a right to their view, and little recourse.
As legal website, Nolo, points out, unless specifics about views are protected in writing by ordinance, association documents or subdivision rules, homeowners do not have rights to a view (or light or air. The exception to this general rule is that someone may not deliberately and maliciously block another’s view with a structure that has no reasonable use to the owner.
Currently in Maui County, no ordinance exists prohibiting an HOA from imposing a view restriction within their own community. Some HOAs have done just that, adding view restrictions in their covenants. There are existing HOAs on Maui, such as One Palau’ea Bay in Wailea, which have such restrictions in their DCCRs already.
However, it gets a little trickier adding a rule once the community is already established, and the HOA must decide if adding such a restriction is good for the community. For example, some Kuau Bayview owners on Maui’s Northshore wanted a rule preventing a future owner from adding a second story onto a home. Some owners felt it would negatively impact their property value at the time of sale.
Legal action can take place if rules are in place to protect views. However, the party with the affected view should first approach the tree owner- which may be the HOA- to request the tree be cut back. The complaining person usually bears the cost of trimming or topping, unless the tree was planted after the rule became effective or the owner refuses to cooperate.
Lacking a view ordinance, there may be other local laws that address view issues, including:
Fence height limits. If a fence is blocking your view, it may be in violation of a local law. Hawaii limits privacy fence heights to six feet. If you have a see-through fence such as a wire or chain link fence, you can build as tall as eight feet.
Tree laws. Certain species of trees may be prohibited from being grown, while others are protected as “exceptional” due to their historic, endemic or cultural value. Laws may also forbid trees that are too close to a street (especially an intersection), to power lines, or even to an airport.
Zoning laws. Local zoning or planning regulations control the size, location, and uses of buildings. Maui buildings are limited to 30 feet high in residential areas. Zoning laws also set back rules “setback,” or distance between a structure and the boundary lines. They also limit how much of a lot can be occupied by a structure. For instance, many suburban cities limit a dwelling to 40% to 60% of the property.
Often, residents of subdivisions and planned unit developments are subject to a detailed set of rules called covenants, conditions, and restrictions (CC&Rs). They regulate most matters that could concern a neighbor, including trees and views. For example, a rule may state that trees can’t obstruct the view from another lot, or simply limit tree height to 15 feet. If someone violates the restrictions, the homeowners’ association may take steps to encourage correction, or even sue. A lawsuit is costly and time-consuming, and its best for the parties to try and work out their differences.
How to Approach a Tree Blocking View Problem
Before you approach the association of a tree that has grown to block your view, consider the least destructive action that could be taken to restore your view? Maybe the association will agree to limited and careful pruning and more regular maintenance.
Are you ready to pay costs associated with trimming or removing the obstruction? If other neighbors are affected by trees blocking their views, it may be beneficial to approach the association together. One property in Makena had several trees reach second-story height in the same year, affecting the view of several condominiums. If there is no view protection policy in place, working as a group could reduce costs.
Before You Pay for Property with a View
A buyer should do their research, including asking the HOA and County planning and department if the property is protected by a view ordinance. Then check neighboring developments if those properties could affect your view, and what protections may be in place. If the property is in a planned unit development, check around to see if the homeowners’ association actively enforces the restrictions.
Check local zoning laws for any property that might affect you, including neighbors downhill. Could neighbors down the hill block the property view if they add a second-story addition?