What is an equitable easement? An equitable easement is a judicially created doctrine that authorizes a trespasser to continue his or her trespass on another’s property in exchange for paying damages, where the hardship on the trespasser in ceasing the trespass is “greatly disproportionate” to the hardship on the land’s owner in losing use of the trespassed upon portion of his or her land
 
Courts have used equitable easements to avoid what some have termed “legal extortion.” This judicially created easement was intended to prevent a property owner inconvenienced to a “minor degree” by a trespass from demanding an exorbitant sum in exchange for not filing suit to enjoin the trespass.
 
The most recent case on this topic is instructive of the necessary elements in establishing an equitable easement. Shoen v. Zacarias, 2015 WL 2452527, involved a dispute between two neighbors over a flat patch of land a little more than 500 square feet that separated their two parcels. Defendant Zacarias had used the patch by placing a cabana, chairs, tables, and stools, believing the patch to be her own property. A staircase, leading from Zacarias’ property to the patch, was the only way either neighbor could access the patch. A survey conducted by plaintiff Shoen’s predecessor showed the patch of ground was actually on her property.
 
The trial court found that defendant Zacarias’ initial occupation of the patch was innocent and that Shoen would not suffer irreparable injury if Zacarias were allowed to keep using the patch. In finding for defendant, the trial court reasoned that Shoen was unlikely harmed by Zacarias’ exclusive use of the patch because it would cost her $100,000 to build a staircase that accessed the patch, that she had adequate space, land and other areas of her property to do the things she proposed to do on the patch, and that Zacarias would suffer injury by having to remove her patio furniture and she would have a staircase that lead to a patch of land she could not effectively use.
 
In overruling the trial court, the appellate court began its discussion by explaining the showing required for an equitable easement: (1) the trespass must be “innocent” rather than willful or negligent; (2) the public or 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 owner by the continuance of the encroachment.
 
The appellate court’s decision mainly focused on the third element necessary for the issuance of an equitable easement in overturning the trial court. The court made clear that imposition of the doctrine requires the competing hardships between the landowner and the trespasser to “tip disproportionately in favor of the trespasser,” and requires the trespasser to “prove that she will suffer a greatly disproportionate hardship from denial of the easement than the owner will from its grant.”
 
Underpinning these strict requirements for the issuance of an equitable easement is the idea that equitable easements give a trespasser, in effect, the right of eminent domain in the property of another. That is why courts approach the issuance of equitable easements with an abundance of caution.
 
The disproportionate hardship element also narrows the relevant considerations for a trial court in determining whether to issue an equitable easement. It precludes inquiries into irrelevant considerations such as which party will make better use of the land, which party values it more, and which will derive a greater benefit from its use.
 
Returning to the facts of the case, the appellate court stated that the hardship defendant Zacarias would suffer in spending less than $300 to remove her patio furniture was not greatly disproportionate to the hardship plaintiff Shoen would suffer in losing the use of her land. Although Zacarias would lose the benefit of her use of the patch of land, the court held that a deprivation of a substantial benefit falls short of the imposition of a substantial hardship.
           
If you have questions about easements or your property rights in general, give us a call at Janssen Malloy LLP.