In the case of Hinrichs v. Melton, 2017 DJDAR 4168 (May 3, 2017). The Court of Appeal fashioned an equitable easement despite no preexisting use of the servient owner’s property. This is the first time a preexisting use of the servient owner’s property has been dispensed with. The court determined that because the neighbor’s property needed access and the owner of the servient tenement did not use this portion of his property an equitable easement was in order.

This expansion creates a new risk for all property owners who may become subject to equitable easements on their land that are invisible both on title on the land.

In the Hinrich’s case the owner of the landlocked property brought an action against multiple owners of three neighboring parcels seeking to establish easements for access to his parcel. The trial court established access over one neighbor’s property by finding an easement by necessity and over another neighbor’s property by connecting an equitable easement. The Court of Appeal affirmed the trial court’s plan to give access to the landlocked owner.

A court may grant an equitable easement where the hardship to the party seeking the easement is greatly disproportionate to the hardship caused to the servient owner over whose property the easement is granted. The court will consider whether the need for the easement is the result of a willful act of the party seeking the easement. The court will also consider whether the servient property owner will suffer irreparable injury by the easement.

In the Hinrich’s case the court determined that the equitable easement’s location was at the very back of the servient property, separated from the portion that the owner primarily used by a creek bed. The court further determined that the servient property owner did not use that portion of his property “for any purpose and had visited rarely, if at all”.

Courts previous to the Hinrich’s have been reluctant to grant equitable easements. Trial courts have broad discretion when it comes to equitable easements and this holding granting an equitable easement to a neighboring property without having any historic prior use may potentially be used to expand the scope of California easement law.