A court may refuse to enjoin the encroachment and may exercise its equity powers to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use.  [i]  When an adjacent property’s tenant is willing to work something out with the property owners and the encroachment is de minimis, a court may exercise its equitable powers to not require a home to be moved from its foundation. [ii]  A neighbor did not have to remove steps which encroached on a landowner’s property and replace them with the original steps where the new set of steps were used by both parties and reconstruction of the original steps would violate the city building code because they would be too narrow.   However, a seven-foot encroachment of a driveway and retaining wall onto adjoining land has been found not to be de minimis, for the purpose of determining whether the encroachment was entitled to an equitable exception from the standard rule requiring removal.

[i] Harrison v. Welch, 116 Cal. App. 4th 1084, 11 Cal. Rptr. 3d 92 (3d Dist. 2004).

[ii] Gelderloos v. Duke, 2004 MT 94, 321 Mont. 1, 88 P.3d 814 (2004)