California real estate and deed of trust disputes | courtroom war stories and lessons learned

How to Establish an Equitable Easement

Most easements are created by a recorded instrument.  Not so with one of the more exotic species of easement — the “equitable easement.”

A case recently published by California’s Second Appellate District — Romero v. Shih — describes what it takes to establish an equitable easement.

Facts: neighboring properties with property line issues; one had an “extremely narrow” driveway

The case featured a property line dispute between next door neighbors at 643 and 651 West Algeria Avenue in Sierra Madre, California.  Tatana and Cesar Romero owned the 651 property; Li-Chuan Shih and Tun-Jen Ko owned the 643 property.

In the past, both properties had a common owner.  The owner applied to the City’s Planning Commission for a lot line adjustment to increase the width of the 643 property and narrow the width of the 651 property by eight feet because the 643 property driveway was “extremely narrow.”  The City tentatively approved the lot line adjustment, but it was never formally finalized, and nothing was recorded.  Nonetheless, the owner built a six-foot tall block wall between the two properties along what would have been the new, lot line adjusted boundary line.

Later grant deeds for the properties — including 2014 deeds transferring ownership to the Romeros (651 property) and Shih/Ko (643 property) included only the original legal descriptions, and mentioned nothing of the envisioned lot line adjustment.

Trial court: equitable easement granted

After learning that the six-foot tall block wall encroached on their property, the Romeros sued for trespass and other claims.

Shih/Ko filed a cross-complaint seeking an equitable easement and other claims.

After a five-day bench trial, the trial court held that the 643 property owned by Shih/Ko was entitled to an equitable easement over the strip of land in dispute “for the 643 property to maintain a driveway, planter and wall/fence.”  The court also concluded that $69,000 would constitute just compensation to the Romeros for the diminution in value to the 651 property caused by the equitable easement.

The Romeros appealed.

Court of Appeal: affirmed

The Court of Appeal affirmed the trial court’s grant of an equitable easement.

The court first summarized the law applicable to equitable easements.  An equitable easement is a judicially created easement giving an encroacher/trespasser an equitable interest in land owned by another protecting the encroacher’s use.  In evaluating a claim for an equitable easement, “the court engages in equitable balancing to determine, on one hand, whether to prevent such encroachment or, on the other hand, permit such encroachment and award damages to the property owner.”

To obtain an equitable easement, a trespasser must establish all three of the following elements:

  1.  the trespass was “innocent” rather than “willful or negligent,”
  2. the property owner or the public 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.”

The court’s focus must be on those 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.”  Since the encroacher/trespasser is technically a “wrongdoer,” “doubtful cases should be decided in favor of the property owner with legal title.”  Because equitable easements give the trespasser “what is, in effect, the right of eminent domain by permitting him to occupy property owned by another[,]” courts approach the issuance of equitable easements with “an abundance of caution” and “resolve all doubts against their issuance.”

Here, the court found that all elements for an equitable easement were met:

  • Shih/Ko had no knowledge of their encroachment on the 651 property.  Nothing was disclosed to them about an encroachment during their purchase of the property, and the fact that they did not conduct an affirmative investigation of the boundary lines while purchasing their property (neither did the Romeros) was not dispositive.
  • The Romeros would not be irreparably injured by the easement.  Their use of the lot since they purchased “has remained exactly the same before and after the discovery of the encroachment.”  There was no evidence of any actual plans to use the encroached-upon area any differently than it had been used in the past.
  • Finally, the hardship to Shih/Ko from having to cease the trespass would be greatly disproportionate to the hardship caused to the Romeros from an easement.  Without the easement, the 643 property’s driveway would be reduced to a width of only 7.2 feet for a substantial stretch — narrower than the 10 foot minimum width required by the City.  The 7.2 foot width “would severely limit most vehicles from using the driveway and would preclude individuals from opening car doors to exit or enter a vehicle.”  Further, expert appraiser testimony showed that while the diminution in value to the 651 property from the easement would be approximately $69,000, the diminution in value to the 643 property without the easement would be $133,000.


Equitable easements, while disfavored under the law, can be obtained if a trespasser/encroacher establishes all three of the required elements as set forth in the Romero v. Shih opinion.