You've spent a huge amount of your hard-earned dollars on a home with a magnificent view, only to find somebody is going to build a giant apartment block that will completely block your vista. What can you do to protect your view?
Unfortunately, this scenario is only too familiar. It's a problem that comes up time and again. I've often heard people say: "I paid for that view, it's mine, surely they can't just block me out?"
Nobody can own a view
The sad fact is that under the law you can't own your view, no matter how much you paid for the home because it had a great view, or how long you have lived there.
However, there are some things you can do before you buy a property with a view to make sure it isn't about to be built out. There are also some things you can do that may preserve your view.
In all conveyancing transactions, there is a saying: "caveat emptor", meaning "buyer beware".
Vendors must reveal anything that may reduce the value of a property
The vendor is required under law to reveal to prospective purchasers anything that may adversely affect the property's value.
If the vendor is aware that a neighbour plans to put up a building that will block the view, they should disclose this. If the vendor produced advertising material that promoted the view but didn't reveal that the vendor was aware that the view would be affected by a proposed development, there would probably be cause for legal action.
Making enquiries with local council and objecting to proposed developments
It would be wise to check with the local council to see if they have development control plans that set out ordinances to protect views, or if anyone owning property nearby has lodged a development application.
The owner of a home with a view can object to a proposed development, and it would be a good idea to get others who are affected to join the objection.
Applying to purchase an easement over air space of a neighbouring property
The owner might also consider applying to purchase an easement from the owner of the neighbouring property which will grant a "non-possessory interest" in the property, that is a right held by one person to use land that is owned by another.
Usually easements are used to gain access to a property, such as a lane owned by somebody else.
But the owner with a view might try to purchase an easement over the air space of a development that blocks their view and limit or alter the construction, so that the view they enjoy is preserved.
Drafting easements of this type is complex and requires experienced, professional legal advice to ensure that the legal agreement satisfies both parties.
Merrill Phillips
Conveyancing
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.