Arizona Court of Appeals, Division One, holds that Arizona has not recognized a private nuisance claim for loss of privacy, loss of view, or the mere possibility of physical intrusion.

In 2014, the Pavlaks purchased residential property in Mesa (Lot 11), adjacent to a vacant lot (Lot 10). Both lots were part of an HOA. The Pavlaks alleged that they purchased their lot relying on a “building envelope” for Lot 10, which specified the area “within which all areas of disturbance, including structures, driveways, walkways, patios, pools, walls, construction work access, grading, slopes, and riprap are located.” They further alleged that they made significant improvements to Lot 11 with the expectation that any house built on Lot 10 would adhere to the original building envelope. But no house was built on Lot 10.

In 2023, Funk purchased Lot 10, and in 2024, the HOA approved Funk’s requests to modify the Lot 10 building envelope, moving it uphill and improving the lot’s view. Funk applied for a permit to build a house on the modified Lot 10 building envelope in 2025.

The Pavlaks then sued Funk, claiming, among other things, a private nuisance. They argued that they had bargained for a home with a next-door lost that had one building envelope, and now the house being built was different. Funk moved to dismiss that claim, framing it as boiling down to a single issue—“[the Pavlaks’] backyard can be seen from Funk’s property”—which he argued is insufficient to establish a nuisance as a matter of law. The superior court acknowledged that the HOA’s CC&Rs had a building envelope modification process, and the HOA and the City approved Funk’s modification requests. Ultimately, the superior court agreed with Funk, concluding that a two-story home looking down on a backyard does not substantially and unreasonably interfere with the use and enjoyment of the lower property. The superior court dismissed the claim, and the Pavlaks appealed. On appeal, the Pavlaks argued that the dismissal was erroneous because no Arizona case had dismissed such a claim under similar circumstances.

The Arizona Court of Appeals began by setting forth the standard for private nuisance claims in Arizona, explaining that a plaintiff must allege actions that “unreasonably interfered with their use and enjoyment of their property, causing significant harm,” and the interference “must be substantial, intentional and unreasonable under the circumstances.”

The Pavlaks had raised five grievances: 1) they lost the use and enjoyment of their home, 2) their property value decreased and they lost money on the home improvements, 3) they lost privacy, 4) they lost views, and 5) there would be potential water runoff issues. The Court  found the first two to be “consequences,” not “interference,” and moved on to address the latter three.

The Court first noted, as the superior court did, that Arizona has never recognized a nuisance claim for loss of privacy. Other states have more expansive definitions of nuisance or allow privacy-based nuisance claims when the intrusion is severe, but that was not the case here. Similarly, the Court stated that Arizona has never recognized a nuisance claim for loss of a scenic view, and other states are generally aligned in the common law. Finally, the Court concluded that, while water runoff issues could constitute private nuisance, the Pavlaks had alleged the mere possibility of such issues—insufficient on its own to state a claim. The Court affirmed.

Judge Thumma authored the Court’s Opinion, in which Judges Becke and Cattani joined.

Posted by: Jacob Abrahamian