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Digiovanni v. Rodriguez

A-4631-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

EASEMENTS — A court may order that one party grant an easement to another at a fair price where the encroaching party has erected improvements on the grantor’s property, the grantor would be unjustly enriched if the easement were not granted, and hardship would result to the encroaching party if the easement were not granted.

A municipal zoning officer approved a property owner’s application to build a chain-link fence along the boundary of its property. A neighbor’s asphalt driveway encroached on the property. The proposed fence would reduce a thirty-foot length of driveway to a width of 8.6 feet. The neighbor sued to enjoin the fence, claiming adverse possession or a prescriptive easement over the strip of land. The lower court found that the neighbor failed to prove adverse use. However, the lower court also found that the resulting narrowing of the driveway would constitute a hardship to the neighbor, and granted an easement interest valued at $3,500.

On appeal, the Appellate Division noted that hardship depends on whether the true owner would be unjustly enriched if he or she were to retain title to property on which a trespasser has erected improvements. Hardship results from the expense and difficulty of removing an encroachment, and not by the resultant condition of the trespasser’s own property. Thus, it is unlikely that a trespasser’s limited use of property, in the form of an easement, would be so significant that trespass would be too expensive or too impractical to eliminate. The Court, therefore, found that a trespasser’s discontinuance of use of an easement does not meet the hardship standard.

In reversing the lower court, the Appellate Division found that the neighbor’s purported evidence of hardship was unrelated to whether its improvements were too expensive or difficult to remove. Instead, the claimed hardship would only result because removing the encroachment would have created a driveway that is impractical and unsafe. Further, the property owners proposing the fence would not be unjustly enriched.

The Court rejected the neighbor’s argument that an easement should be granted by a court based on the doctrine of relative hardship. Relative hardship would allow money damages rather than equitable relief if the benefit to the property owner would be grossly less than the expense which would thereby be put upon the neighbors. However, the neighbors, here, were only encroaching by a few feet, were aware of the encroachment, did not rely on any incorrect surveys, and did not make substantial improvements to the land.


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