Experienced Real Estate And Business Attorney

Equitable Easements require “greatly disproportionate” hardship on the trespasser (Shoen v. Zacarias (2015) 237 CA4th 16

On Behalf of | Jun 8, 2016 | Neighbor Disputes, New Case Law |


While it is possible to obtain an equitable easement to allow a trespasser to continue use of the property in exchange for  damages, the hardship on the trespasser must be “greatly disproportionate” to the hardship of the landowner losing a portion of her land.  In this neighbor dispute over lawn chairs, the Court provided a definition or test to follow adverse to the trespasser.  Basically, the Court of Appeal held that the $275 cost to the trespasser to remove the patio furniture was not sufficient compared to the total loss of use of the area to the legal property owner.

As background, the dispute concerned a 481 square foot area between two hillside parcels  only accessible by a stair case from the trespasser’s yard.  The trespasser, Zacarias, installed lawn furniture with permission of the prior owner of the plaintiff’s land and used the area for perhaps 9 years, 6 years after the ownership of the parcel was clearly not with Zacarias, but with consent of the owner.  At trial, the trial judge trying to be practical and upset that the plaintiff was being well, vindictive, ruled for the trespasser granting a 15 year easement for $5,000 to be paid.

Usually these cases are granted when the trespasser was “innocent” and not “willful or negligent”.  The real property owner must not be “irreparably injured” by the easement and the hardship to the trespasser is “greatly disproportionate to the hardship to the lawful property owner by the encroachment.  Common examples are physical encroachments tied to buildings such as garages, driveways, porch pillars, roof eaves, walls, reservoirs, utility lines, sewer lines, underground water and electrical lines, gas pipes and meters and landlocked properties.