Question: We live in a beautiful Ahwatukee subdivision. Our home’s back yard is adjacent to the community park owned by our homeowners’ association (“HOA”). Recently, the HOA planted three large ficus trees in the community park without any notice to us. These large ficus trees now obstruct our view of the community park. According to Arizona real estate law, does the HOA have the right to plant these three large ficus trees in the community park without any notice to the neighboring homeowners?
Answer: Probably. First, there is no statute or court decision which grants a homeowner a view easement. A view easement, like any other easement, needs to be in writing and recorded. In other words, if the HOA wanted to grant you a view of the community park, a view easement in writing and recorded would be required. Second, the Covenants, Conditions, and Restrictions (“CC&Rs”) of your community probably authorized the HOA to plant the three large ficus trees. Therefore, you should review the CC&Rs carefully. If you determine that the CC&Rs authorized the planting of the three large ficus trees, CC&Rs generally can be amended by the written agreement of a percentage of the homeowners, e.g., sixty per cent of the homeowners.