You paid what seemed like a fortune for your view parcel with views of the blue Pacific. So you are less than pleased when your neighbor's trees grow to a height that blocks your once lovely view. The trees are clearly on your neighbor's property, so you cannot trim them yourself. What can be done?

Chances are, if the two adjacent lots are part of the same subdivision, there may be restrictions in the deeds of both properties that you can enforce. There may be specific restrictions as to the height of trees, shrubs, landscaping and dwellings. A court may even interpret the dwelling height limits to include the adjacent trees and landscaping. In one particular case, the court held that the trees should be trimmed to the level of the roof tops.

When land is subdivided often the developer will place certain restrictions on how the lots or parcels can be used by subsequent owners. These restrictions are usually contained in a document called the "Declaration of Covenants, Conditions and Restrictions." (CC&Rs)

The CC&Rs are usually recorded along with the parcel map and plans and mentioned in the deed, so they become part of the "chain of title" of each parcel or lot. Thus, if subsequent buyers take reasonable care in investigating the title the CC&Rs will be discovered. This is how buyers are given what is called "Constructive Notice," which means that you have been made aware of something and cannot plead ignorance later. There are other grounds on which to challenge the enforceability of the CC&Rs but more on that later.

Any seller (grantor) may impose legal and valid limits on how property may be used by the grantee. The restriction must be for a lawful purpose and be stated clearly. Illegal intent and ambiguity will cause defeat. Before you rush out and sell your next piece of property loaded with exotic CC&Rs, remember that they affect the value and where there are limitations there will be subsequent lowering of value.

A restriction can impose a condition that the property be used only for a specific purpose, such as a school, highway, residence, etc. These are examples of affirmative covenants. Negative covenants are typically those that inhibit or prohibit the consumption or sale of alcoholic beverages and so forth. Others prohibit commercial or retail use.

CC&Rs most generally run "with the land," where each subsequent owner of the parcel is bound by the restrictions. Covenants that run with the land will bind even those who obtain the property through gift or will.

But can a restrictive covenant be enforced by a property owner against another property owner when there is no direct contractual relationship between the two owners? Yes, it can.

Restrictive covenants impose legally valid limitations on the use of property. If the property is used in violation of a CC&R, the property may revert to the original grantor, or in some cases to the prior grantor. The more usual situation is for an owner to bring a lawsuit to force the neighbor to stop violating the restrictions. If the covenant runs with the land, the current owner will be bound and the neighbor will be entitled to injunctive relief.

How can an owner end the limitations imposed by the CC&Rs? Often they seem unreasonable and a burden. Under certain situations the restrictions can be defeated in court. One approach to render CC&Rs unenforceable is to expound the doctrine of "changed circumstances." If conditions in the area near and adjacent tot he property have changed so drastically that a covenant is no longer serving its purpose, it will no longer be enforced.

You may remember the controversy some years ago when a major university wanted to serve beer in its cafeteria. But, there was a prohibition in the CC&Rs placed by the civil war general who granted the college land many years ago.

Well, the court was petitioned to invalidate the restriction. The students lobbied for the beer, while the faculty and regents approved of the profits beer sales would bring.

The courts pondered and considered, noting that lots of people drank beer these days and that the drinking of beer in itself is not obnoxious to the current use of the property, and that the original old general who granted the land could not have foreseen the vast social changes in society since his time, etc. So they invoked the doctrine of "changed circumstances" and the beer flowed.

CC&Rs are wonderful instruments for preservation of neighborhoods and rural areas. Many people like to live in areas where there is uniformity in landscaping and architecture. The self-imposed controls can enhance values and bring stability to residential areas. You don't have to passively accept a neighbor's obnoxious use if it interferes with your own free and equitable use of your property.

CC&Rs can be as creative as the imagination of the owner. An entire neighborhood could be created for horse lovers where motor vehicles were banned and everyone saddled up or rode in horse-drawn buggies. Other plans could limit future divisibility and development, thereby maintaining open space and lower density, voluntarily, for those who can afford them.

Consider, if you will, willingly agreed-to CC&Rs are more than equal to the task of preserving the neighborhoods than any of the state-mandated plans. With "public" zoning, restrictions tend to benefit a few, generally those of higher incomes. The rest of us eat cake. Wealthy neighborhoods are preserved while those at the bottom of the economic ladder suffer the consequences. The public zoning restrictions only add to the many factors contributing to the housing and environmental crisis of the 1970s and 80s.

If we ended the public controls in favor of private CC&R agreements there would be a diversity of housing and land for all. The crisis would simply end overnight. But the most important aspect is that CC&Rs are voluntary - there is force and coercion in public regulation. So from a moral and constitutional view we should return the freedom offered by private CC&Rs.