When is an Equitable Easement Equitable?

By Robert J. Lanzone

California law allows for a court to compel a landowner to accept money damage for the fair value of his/her property for which a neighbor has trespassed with a fence, a building, retaining wall or some permanent physical encroachment.  The court will refuse to cause the physical structure to be removed.  This has been the law for over 75 years.  Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, Christensen v. Tucker (1952) 144 Cal.App.2d 554.

The court must however, make certain findings in order to allow what amounts to an “equitable easement”:

  1. The trespass must have been innocent or unintentional, not willful;
  2. There will be no real irreparable harm to the trespassed property;
  3. The hardship to the trespassing property is greatly disproportionate to the hardship caused to the owner of the property on which the continuing encroachment is located (Tashakori, supra, 1009).

The court then has to balance the hardships or inconveniences to the respective property owners.

In a recent California Appellate Court case, Shoen v. Zacarias (2015) DJDAR 5643, filed May 22, 2015, the court denied an equitable easement where the “structure” amounted to no more than removing patio furniture.  A small portion of Shoen’s property was accessible only from Zacarias’ property.  Zacarias had used a patch (500 square feet) to place a chaise chair, tables and stools and made an outdoor cabana area with it.  This went on from 2003 when Zacarias purchased her property.  She actually thought the patch of land was part of her parcel.  A new owner, Shoen came along in 2012, surveyed the property and found out the patch of land was on his property.  He demanded the outdoor furniture be removed and use of the area by Zacarias cease.  A lawsuit followed.

The trial court granted Zacarias judgment for an equitable easement making all the findings, including relative hardship, in her favor.  It gave Shoen $5,000 for the equitable easement.  The trial took eight days.  Then there was the appeal.  You sense the parties did not like each other and were willing to incur legal fees and costs over something of seemingly little value.

The trial court’s main findings were that the patch of land was inaccessible and unusable by Shoen.  In balancing the equities the court felt Shoen was losing nothing and the patch of land had reasonable use by Zacarias.

On appeal however, the court focused on the hardship findings and said there was more to it than balancing equities.  The court required the trespass to be made by effectively a structure, not patio furniture.  Zacarias had not built anything permanent.  The cost to her to remove furniture was negligible.  The fact that Shoen has limited use of the patch of property was not the deciding factor in determining hardship (Shoen, supra, p 5645).

In reading the Shoen case you can sense the Appellate Court was not thrilled by having Shoen win.  In remanding the case to the trial court, the Appellate Court left in play Zacarias’ request for a “prescriptive easement”.  Because it made its decision on equitable easement the trial court had made no findings on prescriptive easement.  It may well be that there can be findings that the use of the patch of land were “open, notorious, continuous and adverse, and for at least 5 years”, which are the required findings for prescriptive easements.  These are generally more difficult to prove but it would not be a surprise if the trial court did subsequently make those findings.

©2015 ADC&L

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