Part one of this article discusses an exclusive, implied easement analyzed by the California Second District Court of Appeal in Romero v. Shih, (2022) 78 Cal.App.5th 326. As explained in detail here, the court declined to allow the Shihs (the encroaching party) an implied easement because it would have created an exclusive implied easement. But the court also did not require the Shihs to tear down the six-foot wall, their planters, or portion of their driveway. In making this decision, the court engaged in equitable balancing to determine, on the one hand, whether to prevent the Shihs’ encroachment or, on the other hand, permit the encroachment and award damages to the Romeros (whose land was subject to the encroachment). This balancing act resulted in the court affirming the lower court’s creation of an equitable easement.

An equitable easement allows a court to refuse a landowner’s request to remove a trespasser and instead force the landowner to accept damages for the creation of an equitable easement over the trespassed-upon property. If a prescriptive easement cannot be established, a California court will analyze the cost to remove an encroachment versus the right of the trespasser to pay damages to the property owner. Three elements for an equitable easement must be established:

  • the trespass must be innocent rather than willful or negligent;
  • the public or the property owner must not be irreparably injured by the easement; and
  • the hardship to the trespasser from having to cease the trespass must be greatly disproportionate to the hardship caused to the landowner by the continuance of the encroachment.

Equitable easements are not new concepts but are usually the easement of last resort. A trespassing property owner should first try to establish or create an easement by agreement, implication, prescription, or necessity before relying on an equitable easement. But encroachment happens in many forms, and equitable easements have been found in these California cases:

Christensen v. Tucker (1952) 114 Cal.App.2d 554 (concrete wall)

Field-Escandon v. Demann (1998) 204 Cal.App.3d 228 (sewer line)

Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 (landscaping and irrigation)

Romero v. Shih (2022) 78 Cal.App.5th 326 (a six-foot wall built on a neighbor’s property after assuming a lot line adjustment and variance was approved and recorded)

For a refresher of the facts of Romero v. Shih, please see our prior article. The court analyzed and weighed the evidence and applied it to the three equitable easement elements above. First, the court held the Shihs were innocent and had no knowledge of their encroachment on the Romeros’ property. Second, the court found that the Romeros would not suffer irreparable harm because the use of their property remained the same before and after discovery of the encroachment. Finally, when balancing the hardship to each party, the court found that the hardship to the Shihs if the encroachment was precluded or enjoined outweighed the actual harm the Romeros would suffer. Specifically, the Shihs’ driveway would have to be reduced in size such that many vehicles would not be able to use the driveway and individuals would not be able to open their car doors and exit the vehicle. The court also found that the diminution in value between the two properties (i.e., the decrease in their respective market value due to the encroachment) weighed in favor of the Shihs.

Interestingly—and particularly relevant given the “fairness” concept surrounding an equitable easement analysis—the Romeros argued that they paid taxes for their entire property but were unable to use part of it due to the exclusive nature of the Shihs’ encroachment. The court did not find this argument compelling and rebuffed it because there was not substantial evidence to demonstrate the amount of property taxes attributed to the encroachment. But it appears that if the Romeros admitted this evidence for the court’s consideration, they may have been awarded damages based on the proportional amount of property taxes.

In concluding that creation of an equitable easement was proper, the appellate court discussed that an equitable easement must be limited in scope and duration. The court agreed with the trial court’s decision to extinguish the easement if the current use of the easement area—as a “driveway, planter and wall/fence”—ceased to continue in the future. While the Romeros argued for a more narrowly tailored scope of the easement, the appellate court found the scope provided by the lower court was not greater than reasonably necessary for the Shihs’ use.

As discussed in the prior article concerning the Romero case, an implied easement that provides for exclusive use will not be created by a court. But that is not the end of the story. A trespassing landowner may find relief through the creation of an equitable easement when the land has been used in a particular fashion for decades. Equally important is the rationale the court of appeal used to disagree with the Romeros’ arguments. Generally speaking, parties must provide the lower court with sufficient evidence and a proper record not only to rule in its favor but to make certain arguments on appeal. Here, on more than one occasion, the Romeros fell short on what appeared to be several persuasive arguments because they had failed to provide evidence supporting their appellate arguments during the trial court proceeding.

Ethan Birnberg is licensed in California, Nevada, Colorado, and Wyoming. He is an AV-rated attorney and a 2022 Northern California Super Lawyer (awarded to only 5% of attorneys in California). Ethan regularly assist clients with all types of land use and real estate/construction issues, asset sales, and business acquisitions, along with landlord/tenant matters, lease formation and HOA disputes. He holds dual certifications as a business bankruptcy and consumer bankruptcy specialist from the American Board of Certification, and has extensive insolvency experience assisting entities seeking to restructure under chapter 11 of the U.S. Bankruptcy Code, borrowers and lenders seeking out-of-court workouts, representing chapter 7 trustees, and advising directors, officers, and executive management regarding fiduciary duties and corporate governance issues. He can be reached at