Good Fences = Good Neighbors: Encroachment = Lawsuit

Balancing the Hardships: Equitable Easements Shoen v. Zacarias

By: Jeffrey Leung, Esq. and Jean Wilcox, Esq.

The proverb “good fences make good neighbors” has been traced through history and appears in many cultures and languages. One version or another can be found in German, Norwegian, Russian, Japanese and Hindi literature. Even Benjamin Franklin had his own spin when he said, “Love thy neighbor, yet don’t pull down your hedge!”

In our law practice we have seen many boundary disputes ranging from inches to a complete loss of use of a portion of land. Some neighbor’s encroachments are inadvertent; others are deliberate. Even with the technology available to us today through Google Earth, Yahoo Maps and MapQuest, the certainty of a property’s boundaries can still only truly be known by a survey. It is often the case that when those property lines are accurately drawn, that the battles begin; usually at substantial cost.

We see in the recent Court of Appeal decision of Shoen v. Zacarias (May 2015, “Shoen”) that a good fence (or hedge) would still not have made for good neighbors between the litigants. The Shoen case was yet another opportunity for the court to define when an equitable easement is appropriate. As in prior cases, the Shoen court utilized a three part hardship test to determine whether an equitable easement may be granted: (1) the encroaching party must be innocent; (2) the owner subject to the trespass/encroachment will not suffer irreparable injury or harm; and (3) the hardship to the encroaching/trespass party must be “greatly disproportionate” to the burdened owner. In short, the court evaluated this case by balancing the rights of the parties to determine which direction the “hardships” weigh.

The facts in Shoen and Zacarias’ situation are not so very unusual. Nestled between their hillside properties was a 500 sq. ft. “patch” of land that was accessible only from Zacarias’ home via a staircase that was already there when she purchased the home. At that time she believed the patch was on her property and so she placed a cabana and other patio furniture on it. The owner of the adjacent property (Shoen’s father) discovered via a survey that in reality the patch belonged to him. Still, he allowed Zacarias to use it for several years. But, when Shoen later received title to the property from her father, she challenged Zacarias’ use of the patch and demanded that the patio furnishings be removed. Zacarias was apparently unhappy over this change of events because she refused to remove her furniture and so Shoen sued her over the trespass on Shoen’s property.

After an eight day trial, the court awarded Zacarias a 15 year equitable easement for which she was ordered to pay Shoen $5,000. This, of course, did not sit well with Shoen and she appealed the decision.

The appellate court noted that the difference between Zacarias’ situation from prior cases was that Zacarias’ patio furniture was not a permanent physical encroachment, such as a building, that would be extremely costly to remove or relocate. The Shoen court concluded that Shoen’s “hardship” was not “greatly disproportionate” to the burden on Zacarias’ property rights. Stated differently, the burden is on the trespasser to convince the court to make an exception to property ownership and force the owner to accept damages instead of reclaiming their land. Thus, the court denied Zacarias an equitable easement, and she could no longer enjoy her patio furniture on the little patch of land.

The outcome in Shoen v. Zacarias reinforces why property owners need to know their property’s boundaries and, in the event an encroachment is found, to understand the complexities of setting the boundary right. As Robert Frost said so well in his poem, The Mending Wall:

Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offence.



felton Hershorin & Henry, LLP

27422 Portola Parkway, Suite 360  

Foothill Ranch, CA 92610

Telephone: (949) 859-5600

Get Headlines free  SUBSCRIPTION. Keep us publishing – DONATE

*Scroll down to post a comment




Leave a Reply

Your email address will not be published. Required fields are marked *