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  1. #1
    Join Date
    Aug 2015
    Posts
    11

    Default What is an Equitable Easement

    My question involves real estate located in the State of: CA

    It was recently brought to our attention that our fence is not located on the correct property line and needs to be moved over 3 feet onto the neighbors side. Neighbor does have a garden, old greenhouse, and planter boxes that would need to be moved in order for us to place the fence on the correct property line. We need to replace the old fence and I gave the neighbor 30 days to remove their landscaping and other items so we can replace the fence on the correct property line. Neighbor informed me that this situation falls under equitable easement but wants to avoid any conflict and has offered to buy this piece of land ~ 230 ft.² (I asked about this in a a previous post). I am not interested in selling the piece of land but would like to know more about equitable easement and if this in fact falls under that. They bought their property in 2009, we bought ours in 2013. We found out in 2014 that the property line was incorrect and at that time I informed them that we planned to fix it this summer so they have known our plans for quite some time. I've had the property surveyed, the stakes placed, and am ready to move forward with the fence before winter. Any thoughts? Thanks!

  2. #2
    Join Date
    Oct 2011
    Posts
    314

    Default Re: Equitable Easement

    Seriously - do they have a lawyer representing them? Or are they trying to buffalo you?

    Question - did they pay taxes on this 230 sq ft? If not, and they keep trying - get a lawyer, have them write a legal notice to vacate. If they do not vacate within specified time and throw out more baloney obstacles - go to court, get an injunction to make them remove their junk off your property. Note: police do not like to get involved in civil matters like this.

  3. #3
    Join Date
    Nov 2013
    Posts
    672

    Default Re: Equitable Easement

    I'm not a lawyer. I've looked at several articles that try to explain what an "equitqble easement" is, including this;

    http://www.eskridgelaw.net/what-is-a...able-easement/

    There are many more. You might consider a visit with a real estate attorney to clarify how this might play out for you.

    From what I see, this is still a court matter. Your neighbor can't just say "I have an equitable easement", it has to be granted by a court of law. Do you know if he is prepared to follow thru? The fact that he may have used it for 5 years without contest may count against you (in CA) but that would probably be up to a judge.

  4. #4
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: Equitable Easement

    The greenhouse is the potentially biggest problem. From some things that I have read fairly recently a judge may not force someone to remove an actual building that encroaches. Landscaping is another story, but a building is what may fall under equitable easement.

    Edit to add: I should have read Catmad's link first, it does a better job of explaining what I am talking about.

  5. #5
    Join Date
    Jun 2015
    Posts
    988

    Default Re: Equitable Easement

    The greenhouse may be a debate ....it's probably not the primary structure but an accessory building and it may or may not be afixed to ground...many a newer greenhouse /shed is pad mounted and sized just below what it takes to trigger a code/tax matter .....a bit of homework and pictures as to nature of greenhouse may help sort out issues ......I doubt is it a big engineering issue to remove part of a greenhouse ..but I'm not there looking at structure...and neighbor is likely to posture it as a big big deal... ( I watched in amazement a block away how quickly a team of Amish housemovers moved an old stable converted to 4 car garage a few yards to correct a right of way issue .)

  6. #6
    Join Date
    Nov 2013
    Posts
    7,056

    Default Re: Equitable Easement

    If the greenhouse is a permanent structure with a foundation, then the neighbor still has to prove that it was put on your property by mistake and they were not negligent in determining its location to pass the test that an equitable easement should be granted.

    To justify the creation of an equitable easement, three factors must be present: First, the easement seeker must use and improve property innocently—" `[t]hat is, his or her encroachment must not be willful or negligent.'" (Id. at p. 1009.) A court "`should consider the parties' conduct to determine who is responsible for the dispute.'" (Ibid.) Second, the easement opponent will not suffer irreparable harm by its creation. Third, the hardship of denying the easement "`"must be greatly disproportionate to the hardship"' "of allowing it. (Ibid.)
    http://scholar.google.com/scholar_ca...50064908656917

    A garden and planter boxes are not permanent improvements to the land and can be moved.

    And just to be clear, they don't have an easement until a court says they do (as has already been pointed out). So you can write them a letter or have an attorney do it that on such and such date the fence will be erected and the greenhouse demolished or moved. They can go to court or move the greenhouse and boxes if they chose.

  7. #7
    Join Date
    Jun 2015
    Posts
    988

    Default Re: Equitable Easement

    I don't know what you mean as to "old " and if it's a free standing or attached to main building or what...but it's probably useful to go look at the city building records or whatever is relevant in your area ..and look at codes in effect at the time ...IF the greenhouse went in absent proper code approval, permits, setbacks or whatever rules were in place that might add to owners problem to show it was not via willfull steps or neglect IF such comes up. Odds are neighbor got some help to address it as "equitable easement".....do some digging as to history of structure ..

  8. #8
    Join Date
    Aug 2015
    Posts
    11

    Default Re: Equitable Easement

    I believe they have consulted with an attorney but that's about it. We have been paying the property taxes on the 230 sq ft.
    The greenhouse is not a permanent structure. I believe it would be easily moveable. Something similar to those sheds you can buy at Home Depot or other type stores. The shed is not in the best condition so not sure it would hold up in a move though.

  9. #9
    Join Date
    Jun 2015
    Posts
    988

    Default Re: Equitable Easement

    Perhaps all good points in your favor...if a shed is not afixed to,a,foundation it isn probably moveable by design ..poor maintance aside...

    And a shed not afixed to a foundation might well be personal property and not a structure or building in terms of local codes ( sort of why the sheds are designed and sold to fit under code issues ) .

    At least as you post it you are not talking about the guys house is going to fall down if the shed is moved...point being there may not be a great big burden to move/remove the shed BUT if neighbor is,using counsel I would,suggest you not go into court wo your own professional advocate if it goes,there .....

  10. #10
    Join Date
    Oct 2011
    Posts
    314

    Default Re: Equitable Easement

    Quote Quoting KJ1993
    View Post
    I believe they have consulted with an attorney but that's about it. We have been paying the property taxes on the 230 sq ft.
    The greenhouse is not a permanent structure. I believe it would be easily moveable. Something similar to those sheds you can buy at Home Depot or other type stores. The shed is not in the best condition so not sure it would hold up in a move though.
    If you have been paying taxes on the 230 sq - they can't claim AP. The lawyer in their "enthusiastic" effort to support their client is probably throwing out a smokescreen with the baloney easement bit. The major strategy being - they'll go away, or sell vs. going to court and spending $$$. In short, they are being difficult in the face of stacked odds. As HRinDevon mentioned - legal counsel experienced in land issues might be your next step. And whatever you do - don't talk to neighbor.

    BTW - see my PM in your mailbox.

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