Court Grants Equitable Easement Giving Exclusive Use of Property to Neighbor

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The recent Romero v. Shih case provides a keen reminder of the risks to home buyers unaware of lot lines and historical uses of real property.

The Court of Appeal, Second District, reversed in part and affirmed in part the trial court’s ruling granting an implied easement and an equitable easement for exclusive use of property containing a fence and driveway.

Two adjacent property owners sued each other over the right to use an 8-foot-wide strip of land between them. Years earlier, the owner of both properties had applied for a lot line adjustment, which was conditionally approved by the City of Sierra Madre but never finalized or recorded by the owner. The owner obtained a survey, built a fence on the intended lot line and used the strip as a driveway. After both lots had been transferred several times to separate owners over the years, it was discovered that the fence and driveway on Lot A were encroaching on Lot B.

Romero, the owner of Lot B, sued for trespass and to quiet title to the strip of land. Shih, the owner of Lot A, cross-complained seeking an easement to use the land. There was no dispute that Romero owned the land at issue. The evidence showed that removal of the encroachment would have severely limited Shih’s use of the driveway and parking area on Lot A, and that alternatives such as moving one side of the residence were expensive and unreasonable. The trial court ruled that Shih had an exclusive implied easement and an equitable easement to use the strip as it had been used historically.

The Court of Appeal reversed in part and affirmed in part.

An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property. When there is no writing confirming the easement, an implied easement can arise in limited circumstances. An implied easement gives effect to the intent of the original parties to grant use of real property in the same manner and to the same extent as it was being used at the time of the transfer of property. Exclusive implied easements, which in effect strip the servient tenement owner of the right of use, are disfavored and rare.

In this case of first impression, the Court held that an exclusive implied easement, which for all practical purposes amounted to fee title, was not justified because Shih’s encroachment did not meet the requirements of being either de minimis or necessary for safety or public utility purposes.

On the other hand, the Court affirmed the grant of an equitable easement, which gives a court discretion to protect the encroacher’s continued use and award damages where there has been no legal right to encroach. This remedy requires factual findings of (1) innocent trespass by the encroacher; (2) no irreparable injury to the property owner; and (3) disproportionate hardship to the trespasser. Here, Romero had never used the strip and provided no evidence of actual plans to do so. The actual harm to Shih if the encroachment were removed far outweighed the hardship to Romero from keeping it in place.