There's a great deal of talk about who will be President Bush's nominee to the Supreme Court. Much of that talk revolves around different opinions about judicial interpretation. Some people want judges who give a strict, literal interpretation to the law -- seeking to understand it in terms of the plain meaning and intentions of the authors. Others prefer jurists whose approach to interpretation and intent is informed not only by modern knowledge and circumstances, but also with an eye to desirable outcomes.

These are not just issues for Supreme Court cases and matters of Constitutional law. The way judges read and interpret documents also has a powerful effect on real estate cases.

A recent ruling from the California Court of Appeal, 2nd District, (Zabrucky v. McAdams) provides a case in point. Zabrucky was a view protection case. At issue was the meaning of a view-protection clause in a set of CC&Rs (Covenants, Conditions, and Restrictions).

The Zabruckys purchased their Marquez Knolls home, with an "incredible, unobstructed ocean view" in Pacific Palisades in 1993. The McAdams purchased their home the next year. In 1999 the Zabruckys learned of the McAdams plan for an addition. Mr. Zabrucky objected to the addition, because, he said, it would "destroy" the unobstructed view for which he had paid.

After consulting with the Marquez Knolls Property Owners Association (MKPOA), the McAdams reduced the size of the project. However, the Zabruckys still objected. The CC&Rs of Marquez Knolls provided for an architectural committee, and later the MKPOA, to review and approve or deny construction plans; however those provisions expired December 31, 1995. Therefore, the Zabruckys filed a court action, alleging that the proposed addition violated Paragraph 11 of the CC&Rs.

Paragraph 11 reads in relevant part that no "tree, shrub, or other landscaping [shall] be planted or any structures erected that may at present or in the future obstruct the view from any other lot."

The trial court actually made a field trip to Marquez Knolls. Not only did the court find that the proposed addition would obstruct a portion of the Zabruckys' view, it also found that the McAdams existing home partially blocked the Zabruckys' view, and that various other homes in the tract also partially blocked other owners' views.

The trial court concluded two things: (1) That Paragraph 11 (quoted above) didn't mean to refer to main dwelling structures, but that, from its context, it could be inferred that the phrase "any structures" was intended to refer to landscaping structures such as fences and trellises. Hence, the McAdams' plans did not violate Paragraph 11. (2) The court also concluded "… it would have been impractical for the original drafters of the CC&Rs to have intended that no house be built which obstructed any other owner's view." Thus, the trial court found in favor of the McAdams.

Zabrucky appealed and sort of won a victory. The appellate court acknowledged that the trial court's reading of Paragraph 11 was not "illogical or unsupportable," but still opined that "a contrary reading is marginally more logical and supportable." It said that "the plain language of Paragraph 11 restriction prohibits the erection of 'any structures' which obstruct views on an adjoining property," and that the trial court's interpretation limiting it to "landscape-related" structures should not stand.

Strike a blow for strict construction.

Then the appellate court went on to agree with the trial court's observation that it would have been impractical for the drafters of the CC&Rs to have meant that no house could be built which would in any way obstruct the view of another. Hence, the appellate court held it "would be in keeping with the intent of the drafters" that the sentence in Paragraph 11 should be understood as meaning to prohibit any structure that would unreasonably obstruct the view of another.

So the McAdams get to proceed with their addition after all, as long as they do not unreasonably obstruct the view of the Zabruckys.

Want to bet they'll be back in court again?

Published: July 19, 2005

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Bob Hunt is a former director of the National Association of Realtors and is author of the recently published book, "Real Estate the Ethical Way." A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at .