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The Court of Appeals:  No to an Exclusive Implied Easement But Yes to an Exclusive Equitable Easement

The California Court of Appeals has, it seems to me, muddled the law of boundaries and easements in their latest decision.  In Romero v. Shih (2022) 78 Cal.App.5^th 326, the court addressed a property line dispute between two neighbors in which the court struck down the trial court’s finding of implied easement but affirmed the finding of what is supposed to be a disfavored equitable easement.  To make matters worse, the equitable easement is also an exclusive easement.  In other words, the court gave one person’s land to the neighbor under the guise of “equity”.

Real estate attorneys throughout California will find it harder than ever to determine when a boundary will be enforced or when a court will impose a purported exclusive equitable easement.  This will only increase litigation between neighbors and allow for inconsistent rulings.

The court’s opinion involves prescriptive easements, implied easements and equitable easements so bear with me on making sense of all of this.

1. What Is An Easement?

What is an easement?  A case addressing a prescriptive easement noted that “An easement, after all, is merely the right to cross the land of another … is not an ownership interest, and certainly does not amount to a fee simple estate.”

An easement is a “restricted right to specific, limited, definable use or activity upon another’s property, which right must be less than the right of ownership.

An easement “gives a nonpossessory and restricted right to a specific use or activity upon another’s property.”

An easement is not a type of ownership, but rather an incorporeal interest in land … which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another.

The key distinction between an ownership interest in land and an easement interest in land is that the former involves possession of land whereas the latter involves limited use of land.

Civil Code section 801 lists 18 types of easements, including the right of pasture; the right to fishing; the right to taking game; the right-of-way; the right to taking water, wood minerals, and other things; and the right of using a wall as a party wall.

Easement versus adverse possession.  “Similarly, an adjoining property owner cannot obtain the equivalent of adverse possession (and exclusive use of neighboring property) by alleging the elements of a prescriptive easement.”  “Unsurprisingly, claimants have often tried to obtain the fruits of adverse possession under the guise of a prescriptive easement to avoid having to satisfy the tax element.  That is, they seek judgments ‘employing the nomenclature of easement but … create[e] the practical equivalent of an estate.”  Such judgments “pervert the classical distinction in real property law between ownership and use.”

2. The Law Does Not Allow An Exclusive Prescriptive Easement

The very idea of an “exclusive easement” is an oxymoron.

One of the more overused and perhaps least understood arguments in a neighbor-on-neighbor boundary dispute is the idea of an exclusive prescriptive easement.  In other words in those situations where a fence is encroaching on a neighbor’s property, that neighbor’s attorney will usually argue that, because the fence has been there for so long, the neighbor has a ‘prescriptive easement’ entitling the fence to remain and for the neighbor to use the encroached property.

However, “the notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute.”

A neighbor cannot “acquire an exclusive prescriptive easement over neighboring land by enclosing that land with a fence.”  And when a landowner encloses a land with a fence and possesses that land, it is not in the nature of an easement.

“To affirm the creation of this novel ‘fencing easement’ would dispossess an unconsenting landowner of the property while circumventing readily available, accurate legal descriptions.”

The court noted two discrete exceptions:  (1) cases involving utility services or important essential public health and safety purposes; and (2) de minimis cases.

3. The Rationale for Prescriptive Easements Applies to Implied Easements

The Romero court held that the rationale preventing an exclusive easement in a prescriptive easement case also applies to implied easements.  An implied easement which is exclusive “cannot be justified or granted unless: 1) the encroachment is ‘de minimis’; or 2) the easement is necessary to protect the health or safety of the public or for essential utility purposes.”  The court specifically found that the proposed easement was not de minimis as it encompassed 13% of the neighbor’s land.

4. The Court, However, Affirms An Equitable Exclusive Easement

The court’s opinion first reviews the court’s equitable powers:  “Where there has been an encroachment on land without any legal right to do so, the court may exercise its powers in equity to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use, namely a judicially created easement sometimes referred to as an ‘equitable easement.’”  “In making its determination, the court engages in equitable balancing to determine, on the one hand, whether to prevent such encroachment or, on the other hand, permit such encroachment and award damages to the property owner.”

5. The Elements of an Equitable Easement Are Fuzzy

“California courts have ‘discretionary authority to 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 [equitable] easement over the trespassed-upon property in the trespasser’s favor, provided that the trespasser shows that (1) her trespass was ‘innocent’ rather than ‘willful or negligent’; (2) the public or the property owner seeking the injunction 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 the owner by the continuance of the encroachment.”

Unless all three elements are established, a court lacks discretion to grant an equitable easement.

The problem, of course, is that all of these elements are subject to differing interpretations by different attorneys and judges.  I think that even experienced real estate attorneys could look at the facts of the Romero case and split down the middle as to what the outcome should be.  Or, quite frankly, I think a majority could disagree with how the Romero court decided this case.

The court’s opinion points out that “the court’s focus must be on the three elements, rather than ‘a more open-ended and free-floating inquiry into which party will make better use of the encroached-upon land, which values it more, and which will derive a greater benefit from its use.”

6. The Court Proclaims The Importance Of Property Rights…And Then Ignores Them.

“Overarching the analysis is the importance of the legal owner’s property rights and the principle that since the encroacher is the trespasser, he or she is the wrongdoer; therefore doubtful cases should be decided in favor of the property owner with legal title.”

Yes, that sounds right.

“Equitable easements give the trespasser what is, in effect, the right of eminent domain by permitting him to occupy property owned by another.”

“Such a right is in tension with the general constitutional prohibition against the taking of private property.”

“That is why courts approach the issuance of equitable easements with an abundance of caution, and resolve all doubts against their issuance.”

“This also explains why additional weight is given to the owner’s loss of the exclusive use of the property arising from her ownership, independent of any hardship caused by the owner’s loss of specific uses in a given case.  And it elucidates why there must be a showing that the hardship on the trespasser be greatly disproportionate to these hardships on the owner.  To allow a court to reassign property rights on a lesser showing is to dilute the sanctity of property rights enshrined in our Constitutions.”

And yet the court then proceeded to affirm an equitable easement for land used as a driveway (i.e., a land without any structure on it).

7. Equitable Easement Element No. 1: Trespass Must Be Innocent And Not Willful or Negligent

The first element for an equitable easement is that the trespass must be innocent and not willful or negligent.  Any experienced real estate attorney can see the problem with this element.  There is no objective way to determine this.

“The encroaching party’s innocent intent is ‘paramount’—if the encroaching party is ‘willful, deliberate, or even negligent in his or her trespass, the court will enjoin the encroachment.”

In the Romero case the court simply concluded that the respondents did not have knowledge of their encroachment and pointed to the Transfer Disclosure Statement that they filled out.  Moreover, their agent testified that they didn’t know.  That is the extent of the court’s analysis.

My analysis would have been different.  The property owner built a wall on land that did not belong to him.  The property was then sold several times.  The lack of analysis leaves open the question of how can a neighbor intentionally building a wall on someone else’s property be neither willful nor negligent?

8. Equitable Easement Element No. 2: Appellant Must Not Be Irreparably Injured By The Easement

“If the party seeking an injunction of encroachments ‘will suffer irreparable injury by the encroachment, the injunction should be granted regardless of the injury to [the encroaching party], except, perhaps, where the rights of the public will be adversely affected.”

The appellate court adopted the trial court’s circular reasoning:  “The trial court found appellants ‘would not suffer any irreparable harm from such continued encroachment’ because ‘the evidence … does not indicate [appellants] would suffer any concrete, serious harm.’”

The court found that the aggrieved party could still use the same amount of land, but this ignores the fact that this is because the neighbor had a wall that excluded the party from his own land.  The court further points out that the aggrieved party did not introduce evidence of any plans to use their land in the future.

Left unsaid in the opinion is the fact that the party is losing 13% of their land!  This seems like an irreparable injury to me.

9. Equitable Easement Element No. 3: The Hardship To The Trespasser From Ceasing The Trespass Is Greatly Disproportionate To The Hardship Caused To The Landowner By The Continuing Encroachment

“Through the doctrine of ‘balancing conveniences’ or ‘relative hardship’, courts may create equitable easements by refusing to enjoin what otherwise would be deemed an encroachment or nuisance.  These labels suggest that an equitable easement may issue if the conveniences or hardships merely favor the trespasser, when the doctrine actually requires that they tip disproportionately in favor of the trespasser.”

The appellate court cites to an example:  “The typical hardship required to permit an equitable easement is where the trespasser ‘would be forced to move buildings or be airlifted to their landlocked property.’”

In the Romero case, the court bases its conclusion on the fact that if the encroaching neighbor were not allowed to encroach, his driveway would be reduced to 7.2 feet at its narrowest point for a 32-foot stretch.  The opinion does not state why this would therefore be something that the neighbor must correct or suffer for.  The opinion merely states that the third element “is also satisfied.”

10. An Equitable Easement Must Be Limited In Duration And Scope

The appellate court notes that “The scope of an equitable easement should not be greater than is reasonably necessary to protect the use interest of the purported dominant tenement.”

However, the court finds that the trial court’s ruling does specify that the equitable easement “should run with the land, but should terminate if the 643 property were to cease its continued use of that land for a driveway, planter and wall/fence.”

Real estate attorneys should stop and ponder that statement.  Is it any limitation at all?

The court found that the appellants opted for an all-or-nothing approach that hurt them because they failed to include as part of the record any evidence about how the easement may have been more narrowly tailored and not greater than reasonably necessary for respondents’ use.  This raises another interesting question—can the court avoid creating a limited equitable easement by blaming one of the parties?

11. Conclusion

I am not a fan of this recent opinion.  The law of boundaries and legal descriptions should be reliable and consistent.  Property rights should mean something and boundaries should mean something.  The typical equitable easement case, as the court noted, has involved a structure that was inadvertently encroaching when built.  The cost of tearing down the structure to remove the encroachment was considered too much of a burden to justify strictly enforcing the boundary.  In this case, however, there is no structure that must be torn down.  The court appeared mainly to just feel it more fair because the wall had been there for decades.  This should not rise to the level of an equitable easement and this should not have ended up as an exclusive easement for the encroaching party.

Talk to a Partnership Dispute Lawyer

Los Angeles real estate litigation attorney Laine T. Wagenseller is the founder of Wagenseller Law Firm in downtown Los Angeles.  The firm’s attorneys handle real estate lawsuits and have handled numerous boundary and easement issues.  For more information, please visit www.wagensellerlaw.com or call (213) 805-7445.