An easement is an interest in the land of another that entitles the easement owner to a limited use or enjoyment of the other’s land.  [Camp Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 865; Mosier v. Mead (1955) 45 Cal.2d 629, 632.]

An equitable easement is an implied easement created by equity. Equitable easements are decided under the doctrine of relative hardships.  [Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749.]  This is an equitable doctrine that is used to adjudicate the rights of the parties, particularly in encroachment actions.  This doctrine allows a court to balance whether the granting of an equitable easement would cause more hardship on the title owner of the property, than the hardship that would be caused by denying the encroacher use of the equitable easement.

To prevail on a claim for equitable easement, the encroacher must prove the following, by clear and convincing evidence:

  1. That he has built an encroachment on the title holder’s property.  (An encroachment is an unconsented intrusion by a building, other structure, or paved road onto adjacent property.)
  2. That he is innocent – the encroachment must not have been the result of a willful act.
  3. That the hardship of denying him an equitable easement would be much greater than the hardship to the title holder if the encroacher is granted an equitable easement.
  4. That he would be irreparably harmed if he is not granted an equitable easement.

[Christianson v. Tucker (1952) 114 Cal.App.2d 554, 562-563; Miller v. Johnston (1969) 270 Cal.App.2d 289, 305-308; Field-Escandon v. Demann (1988) 204 Cal.App.3d 228, 237-238; Donnell v. Bisso Brothers (1970) 10 Cal.App.3d 38, 44-47; 2 California Real Property Remedies and Damages (2nd ed. 2009) p. 703, § 11.19 (definition of encroachment).]

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