Equitable Easements in California

As we have discussed in previous posts, there are many methods of creating an easement. Today, we discuss the creation of an easement based on principles of equity.

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].)

To determine whether you are entitled to an equitable easement, 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 this stations across a wide range of situations ranging from retaining walls, driveways, patios, fences, gates and other areas. To inquire about a free consultation, please call (310) 954-1877, email us at or fill out our contact us box.

By Stephanie Goldstein, Esq.