By Glen C. Hansen

Civil litigation involving boundary disputes often includes legal questions about whether one neighbor has the right to use the property of another neighbor for driveway, parking, landscaping or other purposes. While California courts may grant a prescriptive easement to a neighbor to use his or her neighbor’s property for a limited use, a prescriptive easement will not be granted for “exclusive” use of neighboring property. This article outlines the factors that courts consider when determining whether an intended use of neighboring property is “exclusive,” and therefore prohibited as a prescriptive easement.

This article also explores how courts may employ their equitable powers to deny the neighboring property owner an injunction to remove an encroachment, even if that denial has the practical effect of granting “exclusive” use of neighboring property.

A.   “Exclusive” Prescriptive Easements May Not Be Granted For Use Of A Neighbor’s Property.

Persons who seek the legal right to use a neighbor’s residential property usually begin their argument by invoking the doctrine of adverse possession as the basis for that right. However, adverse possession requires the payment of all taxes assessed against the property during the five-year period. Claimants normally fail to prove adverse possession because they have not paid the taxes assessed for the neighboring property at issue. Nevertheless, claimants who have exercised what amounts to possessory rights over neighboring property, improperly invoke the doctrine of prescriptive easements in order to escape the tax requirement for adverse possession.

The key difference between adverse possession and prescriptive easements involves the nature of the right that is obtained under those two doctrines. A claimant relying on adverse possession seeks fee title to disputed property. A prescriptive easement, by contrast, is not an ownership interest and only allows a claimant the restricted use of property owned by another. The issue then becomes whether the “use” of the neighboring property that the claimant seeks as a prescriptive easement is so exclusive that it constitutes the practical equivalent of adverse possession. California courts apply the general rule that “an exclusive prescriptive easement, ‘which as a practical matter completely prohibits the true owner from using his land,’ will not be granted in a case (like this) involving a garden-variety residential boundary encroachment.” (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093.)

There are essentially four questions that courts consider in determining whether a prescriptive easement for a neighborhood boundary encroachment is “exclusive” and therefore prohibited:

  1. Is the owner of the dominant tenement using the disputed neighboring property in a restricted, partial or intermittent manner?The less restricted and more frequent the use that is sought under a proposed prescriptive easement, then the more that use is impermissibly “exclusive.” 
  2. As a practical matter, will the prescriptive easement prohibit the neighboring owner from using his or her property in a meaningful way? Another way of phrasing this factor is whether the neighboring property owner will be deprived of nearly all the rights that owners customarily have in residential property. If so, then the prescriptive use is impermissibly exclusive.
  3. Does the prescriptive easement effectively prevent the neighboring owner from determining how the property covered by the easement is to be used?In determining whether or not a prescriptive easement is “exclusive,” courts not only consider the amount of use that the owner of the servient tenement may make of the disputed property, but also whether that owner can decide how the disputed property will be used.
  4. Would the prescriptive easement impact the servient owner’s ability to use remaining adjacent property that is not covered by the requested easement?In at least one case, the court considered the impact that the prescriptive easement would have on the neighbor’s ability to use other portions of the neighboring property that are not part of the disputed portion of land to be covered by the easement.

 B.   A Court May Refuse to Enjoin a Defendant’s Encroachment On Plaintiff’s Property, Thereby Creating An Exclusive Equitable Easement.

Even though an “exclusive” prescriptive easement is prohibited in the neighborhood boundary encroachment context, courts may nevertheless use their equitable power to deny an injunction sought by a plaintiff property owner to remove a defendant neighbor’s unlawful encroachment. Under the doctrine known alternatively as “relative hardship,” “balancing of equities,” “balancing conveniences,” “relative hardship” or “comparative injury,” the court may essentially create an exclusive equitable easement in favor of the defendant. To do so, a court should consider the following four factors:

  1. The defendant encroacher must be innocent, and not willful. To be willful, the encroaching party must not only know that he is building on the plaintiff’s land, but act without a good faith belief that he has a right to do so. 
  2. The plaintiff’s injury caused by the encroachment must be less than irreparable. Unless the rights of the public would be harmed, the court should grant an injunction in favor of the plaintiff property owner if the plaintiff will suffer irreparable injury.
  3. The cost to defendant of removing the encroachment must be greatly disproportionate to plaintiff’s hardship caused by the continuance of the encroachment.  The defendant must prove the significance of the cost of removing the encroachment if the injunction is granted.
  4. In fashioning an equitable easement and the related remedies the trial court has great flexibility. For example, a court could require the defendant to pay monetary damages to plaintiff for the encroachments, if plaintiff proves the amount of damages the plaintiff has suffered.

In short, a court using its equitable powers could allow an exclusive easement over a neighbor’s property that is otherwise prohibited under the doctrines of adverse possession and prescriptive easements.

Glen C. Hansen is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.