By Glen C. Hansen
Previously, this author explored how, under the doctrine of “equitable easements” (also known as “relative hardship”), courts may refuse to grant an injunction to a property owner to remove from his or her property an encroachment that is created or maintained by a neighboring owner. (See Glen C. Hansen, “‘The Court Let Me Keep My Fence On Your Land’: Neighborhood Boundary Encroachments and Exclusive Easements,” 29 Calif. Real Property Journal 10 (May 2011).) “Establishing the necessity for an equitable easement requires the owner [who built and/or maintains the encroachment] to prove that (a) the owner is innocent; (b) the neighbors’ injury caused by the encroaching structure is less than irreparable; and (c) the owner’s cost in removing the structure is greatly disproportionate to the neighbor’s injury caused by the structure.” (Id. at p. 14.) With no reported case law on point, this author suggested that “there is no ‘sword’ that the [encroaching] owner can wield to establish the right to maintain the encroaching structure [on neighboring property].” (Ibid.) Indeed, the Court of Appeal for the Sixth Appellate District held in unreported decision: “[W]e observe that the doctrine of relative hardship has only been invoked as a shield to defend against an injunction requiring the removal of an unlawful encroachment.” (Cobb v. Gabriele (2007) 2007 Cal.App. Unpub. LEXIS 3448, at *44 (emphasis added).)
However, the court of appeal has now recognized that a plaintiff owner of an encroaching structure may be able to assert the doctrine of “equitable easements” as a “sword” through the use of a declaratory relief cause of action. In Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, rev. denied, 2011 Cal. LEXIS 9814, the Court of Appeal for the Second Appellate District held that a trial court did not abuse its discretion, under a cause of action for declaratory relief, in creating an equitable easement for plaintiff property owners for ingress and egress over a driveway on defendants’ neighboring property.
In Tashakori, plaintiff owners originally owned two neighboring lots, “Lot 18” and “Lot 19.” Both lots were only accessible to the nearest public street via a shared driveway that extended over Lot 19 to the street. Plaintiffs sold Lot 19 to the predecessor of defendants, and retained ownership of the undeveloped Lot 18. As a result of the sale, and unknown to plaintiffs at the time, Lot 18 became landlocked because there was no recorded easement that extended all the way from the public street to Lot 18. When the defendant neighbors threatened plaintiffs with legal action if they continued to use the driveway, plaintiffs sued those defendants in order to establish the plaintiffs’ right to use an easement over the driveway on Lot 19. Plaintiffs sought quiet title to rights of ingress and egress across the easement, declaratory relief, injunctive relief preventing interference with the plaintiffs’ easement, and “an equitable easement in the alternative.” At trial, plaintiffs did not argue that a traditional easement existed, but instead sought an equitable easement.
The trial court granted an equitable easement over the driveway area in favor of plaintiffs. The trial court found the following elements of the “relative hardship” test were met: (a) plaintiffs were innocent because they relied on the legal description in a preliminary title report and on inaccurate representations by the real estate broker and the prior owner; (b) the defendants would suffer very little or no harm from plaintiffs’ use of the driveway in easement area (e.g., defendants “do not use and have never used the shared driveway”); and (c) plaintiffs would be irreparably harmed if the equitable easement was denied, and such harm strongly outweighed the “very minor and relative harm that might be caused to [defendants] by the imposition of an equitable easement.” Defendants appealed. The court of appeal affirmed, and held that the trial court did not abuse its discretion in granting the equitable easement.
On appeal, defendants did not contest the trial court’s factual findings or the manner in which the trial court applied the “relative hardship” test. Instead, defendants argued that the equitable easement theory is not applicable to this case for three reasons. The court rejected all three reasons. First, defendants argued that the equitable easement doctrine may only be raised as a defense to a property owner’s suit to enjoin an encroachment or trespass (i.e., only as a “shield.”) The court agreed that “most” of the reported cases involving equitable easements “involve the determination whether a defendant should be ordered to remove physical encroachments located on the property of the plaintiff.” Here, by contrast, the equitable easement was sought by plaintiffs, without the defendants seeking an injunctive relief to deny plaintiffs access over defendant’s property. The key issue for the court was that plaintiffs sought the equitable easement in the form of a “request for declaratory relief” and the primary right underlying that claim was the defendants’ alleged right to exclusive possession of the property encompassing the shared driveway, with the alleged wrongdoing the plaintiffs’ breach of that property right. The court explained that “[t]he fact that the equitable easement claim is not denominated as a request for declaratory relief is inconsequential.” The direct claim in the complaint for an equitable easement incorporated by reference the request for declaratory relief. One allegation in the complaint (that defendants admitted in their answer) that probably had a significant impact on the court’s procedural holding involved the pre-litigation threat that defendants and a third neighbor made that “any owner of Lot 18 that attempts to access Lot 18 by use of the Disputed Easement would be trespassing, and would be subject to legal action.” The court concluded that the complaint adequately raised a justicable issue as to whether plaintiffs are entitled to an equitable easement: “[T]he procedural posture of the case did not prevent the trial court from granting an equitable easement in the [plaintiffs’] favor.”
The court also stated that Donnell v. Bisso Brothers (1970) 10 Cal.App.3d 38 “is somewhat analogous, and demonstrates that there is no rigid requirement that the equitable easement theory be raised solely as a defense.” In Donnell, the court concluded that the plaintiff’s prayer for an injunction “was sufficient to encompass the request for an equitable easement.”
As to the other two arguments that defendants raised on appeal in Tashakori, the court explained that the case law does not require that a long-standing prior use was a condition for granting an easement in equity; and that the trial court acted within its discretion in denying any damages to defendants in compensation for the equitable easement on their property because defendants had not demonstrated that their property would suffer any diminishment in value as a result of permitting plaintiffs to access Lot 18 via the driveway.
The Tashakori decision will likely encourage more property owners to affirmatively seek equitable orders from the courts, as plaintiffs, to establish the owners’ right to maintain an encroachment on neighboring property under the umbrella of a declaratory relief cause of action. What remains to be seen is whether the pre-litigation dispute between the property owners and neighboring owners would have to reach the level of threats of litigation by the neighboring owners before the courts find a justicable controversy sufficient to invoke the court’s equitable powers under a declaratory relief claim.
Glen C. Hansen is an attorney 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, or 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.