Trespasser’s Injury Must be Greatly Disproportionate To the Owner’s Injury to Obtain Equitable Easement

Easements by Simon Offord, Esq.

The recent case of Shoen v. Zacarias further analyzed the equitable easement concept and what is required by a trespasser to obtain one.

In Shoen, the Zacariases (hereinafter “Trespassers”) were innocently trespassing on a patch of land owned by the Shoens (hereinafter “Owners”).  The patch of land was about 500 square feet and included the Trespassers’ patio furniture.  The Owners sued Trespassers for trespass, nuisance and ejectment.  The Trespassers raised an affirmative defense of relief by way of an equitable easement, arguing that they were entitled to an equitable easement due to their use of the Owners’ land.  The Trial Court therefore had to determine whether the Trespassers had established the elements of equitable easement (notably innocent use, whether Owners would suffer irreparable injury, and a balancing of the equities)

After an 8 day trial, the Trial Court granted the Trespassers an exclusive, 15–year equitable easement over the patch of land contingent upon payment of $5,000 to the Owners.  The Trial Court found that Trespassers’ initial occupation of the patch was innocent; that the Owners would not suffer irreparable injury if the Trespassers were allowed to keep using the patch; and that the balance of equities favored Trespassers.  With respect to the balance of equities, the court found that the Owners were unlikely to be harmed by the Trespassers’ exclusive use of the patch because it would cost the Owners at least $100,000 to build a staircase that accesses the patch, and because the Owners “had adequate other space to enjoy their property.”  On the other side of the balance, the court found the hardship to the Trespassers to be greater because it would cost them $275 to remove patio furniture; the staircase would then lead to a patch that could not be effectively used; and the Owners’ intention to build a wall on its property would minimize the Trespassers’ view and reduce natural light.


The Appellate Court overturned the Trial Court’s decision.  The Appellate Court re-emphasized the fact that in order for a trespasser to gain rights under an equitable easement theory, he or she must prove that they are “irreparably injured” and the hardship to the trespasser is “greatly disproportionate” to the hardship to the true owner for the continuance of the encroachment. The Court went on to emphasize that the equitable easement doctrine’s alternative title, “balancing of the conveniences,” is misleading as the doctrine does not require a mere favoring of the hardships as to the trespasser, but instead a disproportionate tip in favor of the trespasser

The Appellate Court noted that equitable easements are contrary to the constitutional prohibition against taking of private property, thus requiring an “abundance of caution” when granting one, and to resolve all disputes against the issuance of an easement.  Moreover, the Court noted that equitable easements are appropriate when permanent, physical encroachments exist, or for intermittent trespasses in order to access landlocked property, neither of which was present in this matter.

The Court held that removing patio furniture and losing the benefit of the use of unimproved land “[fell] short of the imposition of a substantial hardship”. The Appellate Court was not swayed by the fact that the Owner was still able to use other parts of her land, or that the Trespassers would lose their view or otherwise shrink the usefulness of other parts of their land.


Shoen makes clear that the loss of an encroachment that does not require the removal of physical improvements, but is instead a mere inconvenience or against the trespasser’s desires, is not sufficient to allow for an equitable easement.  This case provides some further guidance to practitioners and reaffirms that the trespasser must have some significant injury in order to obtain an interest in land when the other easement-related theories (such as prescriptive easement, easement by necessity, or adverse possession) fail.


The equitable easement landscape continues to develop.  Although this case does provide some additional guidance, the bottom line is that these cases are at the whim of the trial judge, making them incredibly unpredictable.  What one judge considers “greatly disproportionate” can vary significantly, leaving the attorneys and parties in somewhat of a guessing game.

Shoen v. Zacarias (2015) 237 Cal.App. 4th 16

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