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No Right to an Ocean View or Privacy

Posted by Joel Kriger | Aug 11, 2021

Jonathan Clayton recently sued Bigelo, LLC to prevent it from constructing a two-story home that he claimed not only violated the CCRs but also interfered with his ocean view and his right of privacy and limited his access to light and air because of the size and height of the home. (See Clayton v. Bigelo, LLC, U.S. District Court for the Southern District of California.) The dispute focused on a provision within the La Jolla Foothills Community (Community) CCRs that required approval from an architectural committee prior to constructing a home. Further, no homes were permitted to have more than one story without the prior approval of the committee.

Bigelo obtained a building permit from the City of San Diego to construct a two-story home on the property. It began construction of the home and failed to respond to efforts from Clayton to resolve the issue. Clayton requested mediation, as required before commencing litigation, but Bigelo refused and continued construction.

Clayton filed a request for a temporary restraining order (TRO) to halt all further construction until a trial could decide the issue. A court will grant a TRO if it determines that the plaintiff has a reasonable chance of success and that irreparable harm will occur if it is not granted.

The Community never had an architectural committee, so it would have been impossible for Bigelo to get approval to build in the first place or obtain permission for a two-story home. The CCRs envisioned such a situation and provided that if there was no architectural committee, then approval would not be required if the dwelling conforms to and is in harmony with similar structures. Nine other homes in the community had two stories.

The court concluded that the CCRs did not absolutely limit the erection of buildings to a single story, and when no committee was appointed, approval was not necessary as long as the structure was in harmony with other homes. The court found that the home was in harmony and therefore denied the TRO which effectively ended the case.

Clayton argued that the purpose of the two-story limitation was to protect his right to an ocean view. The law does not protect views in the absence of a specific provision in the CCRs. Clayton also argued that the windows in the second story provided a view directly into his bedroom and interfered with his right to privacy. California law does not protect the right of privacy unless there are specific provisions in the CCRs. Finally, Clayton argued that the purpose of the two-story limitation was to create openness in the community and provide him with light and air which would be impaired by the new structure.  Just as there is no automatic right to a view and privacy, a property owner may not prohibit an adjacent owner from limiting his access to light and air, for example with tall trees, fences or an adjoining structure without specific rights set forth in the CCRs.

About the Author

Joel Kriger

Founder / Of Counsel Practice Areas: Community Association Counsel Joel M. Kriger is the founder of Kriger Law Firm. A native of Pennsylvania, Joel graduated from Temple University in 1970 and moved to San Diego to attend the University of San Diego School of Law, from which he graduated in 1973. Joel maintai...


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