A recent California appellate court case clarified an important issue related to trespassers and subsequent court created easement rights. In Shoen v. Zacarias, the Court of Appeal held that although a court does have the right to establish an equitable easement on behalf of a trespasser, it did not in this case because the hardship to the trespasser in ceasing the trespass was not greatly disproportionate to the hardship to the owner in the continuance of the encroachment. (237 Cal.App.4th 16 (2015)).
In Shoen, Shoen’s neighbor Zacarias had been using a plot of Shoen’s land for several years innocently believing it to be part of Zacarias’ property. Zacarias had placed temporary patio furniture on the area for his own personal use. Shoen did not use that part of her land because certain physical attributes made it difficult for Shoen to access. Eventually, Shoen brought suit for trespassing against Zacarias related to his use of that portion of Shoen’s land as a patio area. The Superior Court granted Zacarias an equitable easement as to that part of Shoen’s land and Shoen appealed.
Equitable easements are implied easements created by equity and are decided by courts under the doctrine of relative hardships. Essentially, a court can deny a landowner’s request to eject a trespasser and instead force the landowner to accept damages as compensation for the judicial creation of an easement over the trespassed-upon property in the trespasser’s favor. Courts are reticent to issue equitable easements since it essentially gives the trespasser a right of eminent domain by permitting them to occupy property owned by another. However, if certain requirements are fulfilled a court can establish an equitable easement in favor of a trespasser instead of ejecting them from the owner’s property. The equitable easement doctrine is intended to prevent a situation where a property owner, who is minorly inconvenienced by a trespass, extorts an innocent trespasser by threatening to sue the trespasser unless they pay the property owner a very large sum of money. This situation often arises in urban environments, where buildings, driveways and uses are located very close to property lines.
The following criteria must be fulfilled in order to warrant the granting of an equitable easement in favor of the trespasser:
(1) the trespass was innocent rather than willful or negligent,
(2) the public or property owner will not be irreparably injured by the easement, and
(3) the hardship to the trespasser from having to cease the trespass is greatly disproportionate to the hardship caused to the owner by the continuance of the encroachment.
Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement. Further, it is not enough if the hardship simply favors the trespasser, it must tip disproportionately in favor of the trespasser. In Shoen, the Court of Appeal found that the third criteria was not fulfilled in that the hardship to the trespasser in removing his temporary patio furniture and not using the land was not disproportionately more difficult than the hardship that Shoen would suffer in losing the land that she owns.
This case is important for property owners to be aware of because it evidences that even trespassers can acquire property rights in another’s land, as long as it is done innocently and the balance of hardships tips proportionately in the trespasser’s favor. Of course, there is a very high standard to meet for the courts to grant such a right, but property owners should be aware of their property boundaries and the use of any portion of their land without their permission.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.