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Justifiable Trespass? Understanding Equitable Easements

The Equitable Easement is, simply put, a legal doctrine that permits the use of another’s property in the form of justified trespass or encroachment. Unlike an easement created by contract or one that is adversely acquired through an open and uninterrupted use (learn more about Prescriptive Easements here), an Equitable Easement is ordered by a court, in equity, after balancing each party’s relative hardships. Such a court order could come either affirmatively (i.e., by a plaintiff seeking to establish an equitable easement through a quiet title action) or by a refusal to enjoin a trespass or encroachment. (To avoid confusion, the party seeking an Equitable Easement will be referred to herein as the “Trespasser” and the party objecting to such will be referred to as the “Property Owner”.)

An Equitable Easement can be sought to legally vindicate a trespass by persons.  Linthicum v. Butterfield (2009) 11 Cal.App.4th 259 (use of a roadway) and Tashakori v. Lakis (2011) 196 Cal.App.4th 1003 (use of a private driveway) are just a couple examples. Encroachment by physical structures is also within the doctrine’s purview: Christensen v. Tucker (1952) 113 Cal.App.2d 554, for instance, is a seminal case that involved the construction of a cement abutment; Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228 was about the placement of a sewer pipe; Hirshfield v. Shwartz (2001) 91 Cal.App.4th 749 dealt with encroaching landscaping and other improvements; and Shoen v. Zacarias (2015) 237 Cal.App.4th 16 addressed encroachment by patio furniture.

Integral to a court’s analysis is the “relative hardship” test adopted in the above-mentioned Christensen case, namely whether the potential hardship to the Trespasser is “greatly disproportionate” to that of the Property Owner (more on this and the other factors below). The facts in Tashakori may be illustrative. The Tashakoris owned a landlocked parcel and thus had to trespass on a neighbor’s (Lakis) property for ingress and egress. The court found that the Lakises would suffer very little or no harm due to the trespass, given that they do not use and never used (nor ever paid upkeep for) the portion of land on which the Tashakoris were trespassing. The Lakises also did not present sufficient evidence to support an argument for reduced property value[1] or invasion of privacy. The Tashakoris, on the other hand, would be irreparably harmed[2] if there was no Equitable Easement because such would render the Tashakoris’ property inaccessible and essentially unusable.

The Hirshfield case provides further guidance on the factors a court will consider in determining whether an Equitable Easement should exist: (1) whether the Trespasser is innocent, i.e., that the trespass or encroachment must not be willful or negligent; (2) absent harm to the rights of the public, whether the Property Owner would suffer an “irreparable injury”; and (3) the hardship suffered by the Trespasser must be “greatly disproportionate” to that of the Property Owner. As to the aforementioned (1) innocence requirement, the courts, and especially more recent cases have emphasized the importance of such[3]. In Ranch at the Falls LLC v. O’Neal (2019) 38 Cal.App.5th 155, the court held that because the Trespasser in Ranch knew from the date of purchase that the land lacked access, there could be no Equitable Easement granted in those circumstances. Not only should the burden of proving innocence fall on the Trespasser, even if the trespass was not intentional, an Equitable Easement should also be denied if the Trespasser is negligent. The court in Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020 ruled on this very distinction, finding that the Trespasser was negligent in failing to do a lot line survey before planting encroaching pistachio trees.

As alluded to above, a claim for Equitable Easement can be brought affirmatively by a Property Owner (e.g., as a lawsuit to enjoin trespass) or a Trespasser (i.e., for declaratory relief to obtain an order from the court). Irrespective of which side of the argument you are on, it is imperative to consult with an experienced attorney that can both counsel you and advocate on your behalf.


Mike Cheng is a partner in the litigation department at Berliner Cohen, LLP. He can be reached by telephone (408) 286-5800 and via email (

This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship. Anyone with questions about this topic should consult an attorney.


[1] This should serve as an important reminder to the Property Owner to claim and prove damages (e.g., reduced property value) in opposing an Equitable Easement.

[2] The irreparable injury analysis is more typically applied to that of the Property Owner rather than that of the Trespasser. (See e.g., Hirshfield, supra, 91 Cal.App.4th at 759.)

[3] The court in Hirshfield recognized that “the encroaching party’s innocent intent is paramount.”