By Glen Hansen
In Shoen v. Zacarias (2015) 237 Cal.App.4th 16, the Court of Appeal for the Second Appellate District held that the hardship that a trespasser would have in removing her portable patio furniture from a neighbor’s property would not be “greatly disproportionate” to the hardship on the neighbor in losing the trespassed-upon portion of that neighbor’s property occupied by the furniture, and so the trespasser was not entitled to an equitable easement to maintain that furniture on the neighbor’s property.
In Shoen, plaintiff Lilli Shoen and defendant Juliet Zacarias (Zacarias) own adjacent parcels on a hillside. Situated between them is a relatively flat patch of land a little more than 500 square feet in area, most of it is part of Shoen’s property. The terrain makes the patch not easily accessible from Shoen’s property. When Zacarias purchased the property in 2003, she thought the patch was on her property and populated it with outdoor furniture—a cabana, a chaise chair, tables, and stools; none of it was set in concrete. In 2005, the prior owner of Shoen’s property told Zacarias she could continue to use it for as long as he owned the property. In 2006, Shoen’s father bought the property and deeded it to Shoen around 2012. Shoen and her father learned of Zacarias’s use of the property in 2006, but said nothing about it until 2011, when Shoen demanded that Zacarias remove the furniture. When Zacarias refused, Shoen sued for damages, as well as injunctive and declaratory relief, on theories of trespass, nuisance, ejectment, and negligence. As an affirmative defense, Zacarias sought an equitable easement. Zacarias also alleged claims against Shoen for prescriptive easement and nuisance. The trial court bifurcated the matter, litigating the matter of the equitable easement first. The trial court declared that Zacarias was entitled to an exclusive, 15-year equitable easement over the patch of land contingent upon payment of $5,000 to Shoen. Shoen appealed. The Court of Appeal reversed.
The appellate court explained that, under the “equitable easement” doctrine, courts may 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 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 property owner 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 property owner by the continuance of the encroachment. (For more information see the attached article.) The key element that was at issue here was the requirement that the hardship on the trespasser in ceasing the trespass be “greatly disproportionate” to the hardship on the land’s owner in losing use of the trespassed-upon portion of her land. That element was not met in this case.
The trial court held for Zacarias on the ‘balancing of the hardships’ element because it found that Shoen was unlikely to be harmed by Zacarias’s exclusive use of the patch. It would cost Shoen at least $100,000 to build a staircase that accesses the patch, and the trial court found that Shoen “has adequate space, land and other areas of her property to do the things [(sit, read, have a cup of coffee, or plant a garden)] she professes she wants to do on the” patch. On the other side of the balance, the trial court found the hardship to Zacarias to be greater because it would cost Zacarias $275 to remove her patio furniture; her staircase would then lead to a patch she cannot effectively use; and Shoen’s intention to build a wall on her property would minimize Zacarias’s hillside view, reduce the natural light into her home, and somehow shrink the usefulness of other parts of Zacarias’s yard. The trial court alternatively ruled that it would grant an equitable easement independently of these considerations based on its own, unfettered view of “whatever it deems important … in determining how the equities are to be balanced.” The Court of Appeal held that this analysis by the trial court’s was flawed.
The appellate court emphasized that the equitable easement doctrine requires that the hardships “begin tipped in favor of the property owner due to the owner’s substantial interest in exclusive use of her property arising solely from her ownership of her land.” 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 “[a]n abundance of caution,” and resolve all doubts against their issuance.” Thus, “there must be a showing that the hardship on the trespasser be greatly disproportionate to these hardships on the owner.” Mere deprivation of a substantial benefit on the part of the trespasser “falls short of the imposition of a substantial hardship.” Courts may not engage in “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.” The court reasoned that the “greatly disproportionate” requirement prevents equitable easements from becoming a means of obtaining an adverse easement without having to satisfy the more onerous requirements of prescriptive easements, including the requirement of five years of adverse use.
The court concluded, as a matter of law, that the trespasser’s hardship in this case was not greatly disproportionate to the hardship on the property owner. The hardship Zacarias would suffer in spending less than $300 to remove her patio furniture from Shoen’s property (and to have a stairway that leads to her neighbor’s property) was not greatly disproportionate to the hardship Shoen would suffer in losing the use of land that she owns. This case is unlike cases where equitable easements were allowed, such as forcing trespassers to move buildings or be airlifted to their landlocked property.
The court also rejected Zacarias’s suggestion that Shoen’s allegedly harassing conduct is itself a greatly disproportionate hardship, because “the equitable easement doctrine is not a tool for penalizing unneighborly conduct through the reassignment of property interests.”
Glen Hansen is Senior Counsel 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.