• First, the defendant must be innocent. That is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute.
•Second, unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff ‘will suffer irreparable injury … regardless of the injury to defendant.
• Third, the hardship to the defendant from granting the injunction ‘must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.
In a 2011 decision the landlocked owner satisfied these three factors and obtained an equitable easement, and surprisingly did not have to pay any damages at all.
In Ali Tashakori v. John Lakis, Plaintiff owned two adjoining parcels in Rancho Palos Verdes, which they accessed by using a shared driveway (2212 Via Velardo). They sold the lot which had a house and kept the undeveloped lot. Then they discovered that the remaining lot did not have a deeded easement to use the shared driveway. Defendants complained about their use and threatened to sue. The Plaintiffs sued first. The court applied the relative hardship test, and found all three factors in favor of plaintiffs. -First, the Plaintiffs bought the property with the innocent belief that they had access. They reasonably relied on inaccurate representations by the real estate broker and prior owner (all of whom were probably named in this lawsuit). 
-Second, the plaintiffs would be irreparably harmed because the sole means of access to the property would be denied. -And lastly, the defendants would suffer no harm at all. The Defendants do not use and have never used the shared driveway, nor the land on which the driveway sits. The area is completely separated from the main portion of the Defendants’ property by a fence and vegetation, and is thus not accessible from the rest of the Defendants’ property without scaling the fence. The Defendants do not pay and have never paid for upkeep of the shared driveway, nor do they maintain and landscape or have they ever maintained or landscaped the area surrounding the driveway. The land on which the easement area is located essentially provides no benefit to the Defendants. 
The Defendants argued that the equitable easement theory should not be applied unless there are three perquisite conditions, which the court found did not exist here. They were: 1. Equitable easements apply only as a defense to suit to enjoin an encroachment or trespass. Wrong- there is no such restriction. Besides, In effect, the plaintiffs’ claim here was for declaratory relief – the defendants claimed exclusive right to the property, and the plaintiffs’ use is a breach of the property right. There is an actual controversy because the defendants claimed that if they did not stop trespassing, they would sue.
2. Equitable Easements require a long-standing prior use. Wrong – no cases require this.
3. The Court failed to award damages for use of the easement. Here, the court found there were no damages. The easement area was fenced from the remaining property, and unused by the owners. Two other parcels relied on the easement for access. The owners were not maintaining the easement area. And the owners did not present any evidence that they had been harmed. Photos:
flickr.com/photos/neilarmstrong2/5216289599/sizes/l/
flickr.com/photos/tajiahkura/15823291204/sizes/c/
flickr.com/photos/blackstilettosphoto/13074929573/sizes/c/
