It was previously thought that the doctrine of “equitable easements” (also known as “relative hardship”) could only be invoked by a property owner as a ‘shield’ to defend against an injunction sought by a neighbor requiring the removal of an unlawful encroachment maintained by the owner on the neighbor’s property. However, 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. That case essentially opens the door for plaintiffs to use the doctrine of equitable easements as a ‘sword’ to obtain an order to maintain the encroachment.
Continue Reading Court Recognizes That A Property Owner May Be Able To Wield A “Sword” To Establish A Right To Maintain An Encroachment On Neighboring Property.

In Hill v. San Jose Family Housing Partners (2011) __Cal.App.4th __, 2011 Cal. App. LEXIS 1101, the Court of Appeal for the Sixth Appellate District held (1) that a written easement for a billboard was enforceable, even if the billboard was constructed in an illegal manner; and (2) the servient owners’ development that unreasonably interfered with the visibility of the billboard could be grounds for lost profits damages owed to the owners of the billboard.
Continue Reading Illegal Construction Of A Billboard Does Not Render Billboard Easement Unenforceable, Nor Does It Allow The Servient Owner To Block Visibility Of The Billboard

By Glen C. Hansen

In Murphy v. Burch, 2009 Cal. LEXIS 3983 (April 27, 2009, No. S159489), the California Supreme Court held that the common law elements of strict necessity and common ownership are only part of the showing that is required to establish an easement by necessity, where the common ownership is traced to the federal government. In such a case, a claimant must also prove congressional intent to reserve an access right-of-way, and the inability of the government to condemn an access easement.
Continue Reading Where Property Ownership Originates From a Federal Patent, the Rules for an Easement by Necessity are Different (and May be Practically Impossible to Meet)

By Cori Badgley and Nathan Jones

Easement disputes between neighboring property owners are easy fuel for lawsuits. Generally, an easement is a right to use another’s property, for a specific purpose. For the most part, easements are non-exclusive, meaning that so long as the underlying property owner does not interfere with the easement-holder’s right of use, he can continue to use the easement property. While this is the general rule, Gray v. McCormick (2008) 167 Cal.App.4th 1019 is an easement dispute case where the easement holder (“Gray”) claimed that the servient property owners (“McCormick”) had no right to use a connecting driveway that ran across their property because Gray held an exclusive easement over McCormick’s land.
Continue Reading Keep Your Hooves off My Easement! Exclusive Easement Prevents Servient Landowner from Using Driveway