Equitable Easements in California

Updated on September 13, 2023

When to establish an Equitable Easement

In certain situations where you cannot establish a prescriptive easement for a physical encroachment, you may be able to establish an equitable easement. In fact, most, if not all, cases that grant equitable easements arise out of physical encroachments that otherwise qualify as prescriptive easements. (See Christensen v. Tucker (1952) 114 Cal.App.2d 554 (affirming an equitable easement to maintain concrete wall encroaching on neighbor’s property); Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 (affirming an equitable easement to maintain extensive landscaping and irrigation encroaching on and under neighbor’s property); Field-Escandon v. Demann, supra, 204 Cal.App.3d 228 (affirming an equitable easement to maintain a sewer pipe line encroaching over neighbor’s property).)

How to determine if an Easement is Equitable?

To determine whether you are entitled to easement in equity, courts utilize a “relative hardship” test. (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1009.) Under the relative hardship test, three factors are required to establish an equitable easement:

1. The defendant must be innocent, i.e. his or her encroachment must not be willful or negligent;
2. Unless rights to the public would be harmed, the court should enjoin the encroachment if the plaintiff will suffer irreparable injury, regardless of the injury to the defendant; and
3. The hardship to the defendant by enjoining the encroachment must be greatly disproportionate to the hardship caused to the plaintiff by allowing the encroachment to remain. (Id.) Some negligence on the part of the claimant will not defeat an equitable easement. (Christensen v. Tucker (1952) 114 Cal.App.2d 554, 564.)

Unlike other methods of easement creation, if the court determines that an equitable easement exists, the property owners are generally entitled to damages. (See Christensen v. Tucker (1952) 114 Cal.App.2d 554.) Nonetheless, obtaining an equitable easement may still result in a net benefit where it may be more costly to remove the encroachments than to pay damages.

Schorr Law has experience analyzing easement disputes related to all types of easements. We have dealt with a wide range of situations ranging from retaining walls, driveways, patios, fences, gates and other areas.

Are you looking for a property easement disputes attorney Los Angeles? Schorr Law has the top rated real estate lawyers Los Angeles, California. Call 310-954-1877 to schedule a consult. To inquire about a free consultation, please call (310) 954-1877, email us at [email protected], or fill out our contact us box.