Despite modern technology, good maps, title company preliminary reports and computerized indexes at the county recorder’s office, easement issues still arise in case law and in my practice area.
The shared driveway is a common scenario and in the recent case of Tashakori v. Lakis, the California courts again made a ruling favoring the “trespasser” upon balancing the harms to the parties.
The Tashakoris bought two adjoining parcels in Palos Verdes, California. One had a house and the other lot was unimproved. To get to the empty lot, they drove over a private road (on the Lakises’ land) and across the lot with the house. They sold the lot with the house and presumably went to build a house on the empty lot. One small problem—turns out, it was landlocked.
Once the Lakises complained about the use (and no doubt the construction equipment and noise), the Tashakoris filed suit for a finding that they had access rights to their landlocked parcel.
The lower court did a balancing of the harm to the parties analysis and concluded that the Tashakoris were entitled to an equitable easement as they bought the property with an innocent belief they had access and would be irreparably harmed if they could not get to their land, whereas the Lakises would not be overburdened by one additional household using their road. Indeed, the Lakises had never paid for any road maintenance and did not maintain or landscape around that shared roadway at all.
The Lakises appealed and the California Courts of Appeal affirmed, agreeing with the lower court. The opinion then goes into a helpful recitation of the history* of the “equitable easement” which is really a creation of caselaw, and discusses the 3 factors of the “relative hardship” test:
1) Defendant must be innocent, i.e. his or her encroachment is neither willful nor negligent;
2) Unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff will suffer irreparable injury, regardless of injury to the defendant and;
3) The hardship to the defendant from granting the injunction must be greatly disproportionate to the hardship caused to the plaintiff by the continuance of the encroachment…
The Court of Appeals also went on to address the issue of whether the encroachment needed to be one of long-standing duration and concluded that even a new road could be entitled to an equitable easement.
Lastly, the opinion addressed whether the Lakises could be entitled to damages for the use of their land and the found that while damages would normally be awarded for such use, the damages had to be concretely proven and the Lakises had failed to prove any loss in value to their land from the added burden of one additional family using the roadway when two other families were already using it.
Author’s Comment – the California courts have tended to favor the “encroacher” in these equitable easement cases, perhaps upholding the old axioms taught in law school that the law does not reward those who rest on their rights and that land should not lie fallow. [Tashakori v. Lakis, California Courts of Appeal, Second Appellate District, June 21, 2011]
* Hirschfield v. Schwartz – block wall, underground water and electrical lines, several pool motors encroached on the neighboring property. Field-Escandon v. De Mann – sewer line. Donnell v. Bisso – paved road. Christenson v. Tucker – cement abutment, garage and badminton court encroached on neighboring land.
