What is the Difference Between Implied Easement and Equitable Easement in California?

This question was answered in the recent case of Romero v. Shih. After a bench trial, the trial court resolved a property line dispute between two neighbors by creating an easement in favor of respondents, the encroaching property owners. It granted respondents an exclusive implied easement and, alternatively, an equitable easement over the entire 1,296-square-foot encroachment.

Appellants appealed the judgment, and the appellate court reversed the judgment on the cause of action for implied easement, and affirmed the judgment on the cause of action for equitable easement.

The two neighboring properties at issue are located next door to each other at 643 West Algeria Avenue (643 property) and 651 West Algeria Avenue (651 property) in Sierra Madre, California.

Appellants own 651 property, and respondents own 643 property. At times the appellate court referred to the 651 address as appellants’ 651 property and the 643 address as respondents’ 643 property.

In 1941, Edwin and Ann Cutler (the Cutlers) purchased both properties. At the time of purchase, the 643 property was improved with a home, while 651 property was a vacant lot.

More than 40 years later, Edwin submitted to the Planning Commission of the City of Sierra Madre (the City) an application for a variance, seeking a property lot line adjustment. The lot line adjustment would have increased the width of respondents’ 643 property from 50 to 58 feet, and reduced the width of appellants’ 651 property (the vacant lot) from 63 to 55 feet. 

The City’s Planning Department recommended approval of the variance as requested subject to city engineer review of parcel map and boundary line adjustment.

Edwin thereafter obtained a survey and new legal description for the two properties.

The problem at the root of the parties’ dispute is that there is no evidence the City ever reviewed or approved the survey and new legal description. A certificate of compliance was never executed by the City. Similarly, there was no evidence the lot line adjustment was ever recorded. But the Cutlers later acted as if the new legal description was operative.

Later that year, the Cutlers’ son built a house on the vacant lot (appellants’ 651 property) to sell it for profit. During construction of the house, a six-foot- tall block wall was built between the two properties, along the new legal boundary line surveyed and described, but never certified by the City.

A Notice of Completion was issued and recorded for construction of the house on appellants’ 651 property. The Notice stated a legal description of 651 property identical to the original legal description for the 63-foot-wide lot, and not the reduced 55-foot-wide lot proposed in Edwin’s application for variance.

The Cutlers recorded a grant deed transferring title to appellants’ 651 property to Bevon. The legal description provided in the grant deed did not contain the additional language per the legal description after the tentatively approved lot line adjustment. The legal description specified in the grant deed was again identical to the original legal description for the 63-foot-wide lot and not the reduced 55-foot-lot requested in the variance application.

That same date Bevon executed a grant deed transferring title to 651 property to Manfred and Elizabeth Leong (Leongs). The legal description on the grant deed again did not contain the additional language reflecting a lot line adjustment.

Twenty years later, a grant deed was recorded transferring the 651 property from the Leongs to Dawn Hicks. The legal description in the grant deed for the original 63-foot-wide larger lot was used again.

Later, a grant deed with the original lot dimensions was recorded transferring title of the 651 property to appellants.

Before closing escrow on the 651 property, appellants executed the California Residential Purchase Agreement, which included the following provisions. “Buyer acknowledges that the square footage of the Property has not been measured by Seller. . . (including the square footage of the lot and home) and the square footage quoted on any marketing tools . . . is deemed approximate and not guaranteed. . . . Buyer is buying the Property AS IS, . . . WITH ALL FAULTS AND LIMITATIONS and Buyer acknowledges Buyer’s responsibility to perform all due diligence and investigation regarding Buyer’s acquisition of the Property, including the measurement or confirmation of the square footage of the Property.”

Then a grant deed was recorded transferring title to the 643 property to respondents. The legal description in the grant deed did not contain the additional language increasing their square footage as reflected in the lot line adjustment application.

The Seller Property Questionnaire—received, initialed, and signed by respondents provided there are no surveys, easements, encroachments or boundary disputes regarding the 643 property.

Appellants initiated a civil action against respondents, and the operative third amended complaint alleged causes of action for wrongful occupation of real property, quiet title, trespass, private nuisance, wrongful disparagement of title, and permanent injunction.

The complaint alleged that one of the main reasons appellants purchased the 651 property was because it was advertised to have an approximately 10,000 square foot lot.

Appellants asked respondents to remove the encroachments and share in the cost of building a new fence on the property line, but respondents refused to do so.

Appellants argued respondents’ encroachments prevented them from entering or using approximately 1,296 square feet of their land; this continuing trespass continued to result in damage on a daily basis depriving appellants of their right to exclusive possession and peaceful enjoyment of their property.

Respondents filed a cross-complaint against appellants for implied easement, equitable easement, quiet title, and declaratory relief.

The cross-complaint alleged appellants’ and respondents’ neighboring properties were in the past owned by the same owners who installed pavement and built a wall, planters and other improvements on the properties, which currently exist on the properties.

Respondents sought to quiet title to an equitable easement and/or an implied easement over appellants’ land; they requested the easement run with the land and be binding on all successors-in-interest.

A five-day bench trial took place and the evidence at trial established no real dispute about the basic historical facts.

Appellants made three primary arguments on appeal.

First, they argued the trial court’s judgment should be reversed because, as a matter of law, the court cannot create an exclusive implied easement.

Second, appellants argued assuming implied exclusive easements are permissible, the court erred in creating an implied easement.

Third, appellants contended the court abused its discretion and erred in creating an equitable easement which is not narrowly tailored to promote justice and is significantly greater in scope and duration than what is necessary to protect respondents’ needs.

An easement is a restricted right to specific, limited, definable use or activity upon another’s property, which right must be less than the right of ownership.

An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property.

An easement is not a type of ownership, but rather an incorporeal interest in land that confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another.

The general rule is clearly established that, despite the granting of an easement, the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement.

The owner of the dominant tenement must use his/her easements and rights in such a way so as to impose as slight burden as possible on the servient tenement.

Under certain circumstances, the law implies that the parties intended to create or transfer an easement by a grant or reservation when there is no written document evidencing their intent and, in some cases, even when there is no oral agreement regarding the easement; thus, implied easements are an exception to the general rule that interests in real property can only be created by an express writing or prescription.

Implied easements are not favored. The factual circumstances that permit the creation of implied easements are fairly well established and the implication can only arise where certain facts are present.

Civil Code section 1104 provides the circumstances under which the law implies the existence of an easement.

In contrast to a non-exclusive easement, wherein the servient owner (in this case, appellants) may continue to use the easement area so long as such use does not unreasonably interfere with the use by the dominant owner (here, respondents), an exclusive easement only permits the dominant owner to use the easement area.

Granting an exclusive easement in effect strips the servient estate owner of the right to use the land for certain purposes, thus limiting the fee title; therefore, exclusive easements generally are not favored by the courts.

Prior courts have referred to exclusive easements as “rare” and as an unusual interest in land; it has been said to amount almost to a conveyance of the fee.

Until recently, exclusive easements were found principally in older utility easement cases.  

However, more recent cases have upheld exclusive easements in situations where the express language of the granting instrument either uses the phrase “exclusive easement” or the parties intend that the dominant owner’s use necessarily must be exclusive (e.g., an easement for parking and garage purposes.

Thus, so called “exclusive easements” are not prohibited under California law so long as the language of the creating instrument clearly expresses an intention that the use of the easement area shall be exclusive to the dominant owner.

This was a case of first impression as the appellate court found no case that permits or prohibits exclusive implied easements.

The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute.

An easement, after all, is merely the right to cross the land of another, and it is not an ownership interest, and certainly does not amount to a fee simple estate.

Similarly, an adjoining property owner cannot obtain the equivalent of adverse possession (and exclusive use of neighboring property) by alleging the elements of a prescriptive easement.

A landowner cannot establish adverse possession unless he has not satisfied the necessary requirement of paying taxes for the enclosed land.

Therefore, an exclusive implied easement which, for all practical purposes, amounts to fee title cannot be justified or granted unless: 1) the encroachment is “de minimis” or 2) the easement is necessary to protect the health or safety of the public or for essential utility purposes.

Whether an exclusive easement constitutes fee title or amounts to ownership in fee, rather than an easement, depends on the circumstances of the case, including the terms of any applicable conveyance.

In determining whether a conveyance creates easement or estate, courts look to the extent to which the conveyance limits the uses available to the grantor; an estate entitles the owner to the exclusive occupation of a portion of the earth’s surface; that is, the property owner would not be able to use the disputed and for any practical purpose.

There is no evidence in the record that appellants could utilize the subsurface of the 1,296 square feet for any “practical purpose.”

Thus, the appellate court reversed that portion of the judgment awarding an exclusive implied easement to respondents.

Where there has been an encroachment on land without any legal right to do so, the court may exercise its powers in equity to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use, namely, a judicially created easement sometimes referred to as an “equitable easement.”

In making its determination, the court engages in equitable balancing to determine, on the one hand, whether to prevent such encroachment or, on the other hand, permit such encroachment and award damages to the property owner.

California courts have discretionary authority to deny a landowner’s request to eject a trespasser and instead force the landowner to accept damages as compensation for the judicial creation of an equitable easement over the trespassed-upon property in the trespasser’s favor, provided that the trespasser shows that:

(1) her trespass was innocent rather than willful or negligent;

(2) the public or the property owner seeking the injunction 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.

Unless all three elements are established, a court lacks discretion to grant an equitable easement.

Overarching the analysis is the importance of the legal owner’s property rights and the principle that since the encroacher is the trespasser, he/she is the wrongdoer; therefore, doubtful cases should be decided in favor of the property owner with legal title.

Equitable easements give the trespasser what is, in effect, the right of eminent domain by permitting him to occupy property owned by another.

Case law provides that the court may refuse to enjoin a negligent encroachment if there is corresponding contributory negligence by the landowner which was found in this case because both parties failed to perform a survey or review the City records.

Thus, the first element was satisfied.

Appellant must not be irreparably injured by the easement. If the party seeking an injunction of encroachments will suffer irreparable injury by the encroachment, the injunction should be granted regardless of the injury to the encroaching party, except, perhaps, where the rights of the public will be adversely affected.

The phrase “irreparable injury” is interchangeable with “irremedial injury,” “unusual hardship,” and “substantial hardship.”

The trial court found appellants would not suffer any irreparable harm from such continued encroachment because the evidence does not indicate appellants would suffer any concrete, serious harm.

Appellants’ use of the lot since their time of purchase had remained exactly the same before and after the discovery of the encroachment.

Thus, the second element was also satisfied.

The hardship to the trespasser from ceasing the trespass is greatly disproportionate to the hardship caused to the landowner by the continuing encroachment.

Through the doctrine of “balancing conveniences” or “relative hardship,” courts may create equitable easements by refusing to enjoin what otherwise would be deemed an encroachment or nuisance.

These labels suggest that an equitable easement may issue if the conveniences or hardships merely favor the trespasser, when the doctrine actually requires that they tip disproportionately in favor of the trespasser.

The record supported the inference that the hardship experienced by appellants was greatly outweighed by the actual harm respondents would suffer if the encroachments were enjoined.

Thus, the third element was also satisfied, and the trial court was within its power to grant an equitable easement.

Courts limit the rights of the equitable easement holder both in duration and scope; this aligns with why courts approach the issuance of equitable easements with an abundance of caution, and resolve all doubts against their issuance.

The scope of an equitable easement should not be greater than is reasonably necessary to protect the use interest of the purported dominant tenement owner.

So long as the equitable easement is fashioned on the evidence and equities presented, and narrowly tailored to promote justice, the decision granting the equitable easement will not be disturbed on appeal.

The appellate court was hard pressed to find the trial court abused its discretion when it created an equitable easement that merely maintained the improvements on the disputed land that had been in use and existence for decades.

LESSONS:

1.         Always consider having a survey done to determine the boundary lines of real property before a purchase in order to satisfy the principal of "know what is being purchased".

2.         The general rule is clearly established that, despite the granting of an easement, the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement.

3.         An exclusive implied easement which, for all practical purposes, amounts to fee title cannot be justified or granted unless: 1) the encroachment is “de minimis” or 2) the easement is necessary to protect the health or safety of the public or for essential utility purposes.

4.         Where there has been an encroachment on land without any legal right to do so, the court may exercise its powers in equity to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use, namely, a judicially created easement sometimes referred to as an “equitable easement.”

5.         A landowner cannot establish adverse possession unless he has satisfied the necessary requirement of paying taxes for the enclosed land.