Easements on the Move: The Uniform Easement Relocation Act

EASEMENTS ON THE MOVE

The Uniform Easement Relocation Act

By John A. Lovett

John A. Lovett is the De Van D. Daggett Jr. Distinguished Professor, Loyola University New Orleans College of Law, in New Orleans, Louisiana.

Easements are useful property interests that can facilitate cooperative relationships between neighboring landowners. Sometimes, however, easements can be a source of conflict. The Uniform Easement Relocation Act (UERA), recently approved and offered to state legislatures by the Uniform Law Commission (ULC), offers a carefully structured, judicially controlled framework to resolve a common conflict between a servient estate owner and an easement holder.

The Problem

Consider a typical easement conundrum. Many years ago, two neighboring landowners, or perhaps a single landowner who was subdividing a larger parcel, established an easement providing vehicular access to a public road across one estate for the benefit of the other. At the time of creation, the servient estate was undeveloped woodland, farmland, or prairie. Without giving much thought to the matter, the parties fixed the easement’s location in the middle of the servient estate.

Circumstances have now changed. Different persons own the two parcels. The nearby town is a growing city. If the servient estate owner can move the easement to the edge of the servient estate, the servient estate owner could subdivide the land into smaller parcels suitable for several houses. Perhaps the servient estate could host a significant commercial or multifamily housing development. The servient estate owner is willing to pay for all costs associated with moving the easement. The relocated easement will provide the same functional benefit to the owner of the dominant estate.

If the easement holder, that is, the owner of the dominant estate, refuses to go along with this plan, what can the servient estate owner do?

The Law Before the UERA

For many years, the servient estate owner had few options in most of the United States. Under the traditional “mutual consent” rule, a servient estate owner could only relocate an easement in this situation by obtaining the consent of the easement holder, regardless of the benefit to the servient estate owner and even if the relocation would cause no material harm to the easement holder. Stamatis v. Johnson, 224 P.2d 201, 202–03 (Ariz. 1950), modified on reh’g, 231 P.2d 956 (Ariz. 1952); Davis v. Bruk, 411 A.2d 660, 661–62, 664–66 (Me. 1980). However, not every court in the US followed this rule. A few rejected it outright, and others applied a balancing of the equities approach to resolving disputes over easement relocation. See, e.g., Brown v. Bradbury, 135 P.2d 1013, 1014 (Col. 1943); Cozby v. Armstrong, 205 S.W.2d 403, 405–08 (Tex. Ct. Civ. App. 1947). Moreover, trial court judges frequently had to be overruled, and some appellate court judges voiced considerable displeasure with the majority rule. See John A. Lovett, Easements and Change, 74 Baylor L. Rev. 1, 11–23 (2022) (describing evolution of majority rule and judicial resistance to and discontent with that rule).

In 2000, the law of easement relocation in the United States began to change significantly when the American Law Institute borrowed the civil law “servitude relocation” rule long followed in Louisiana and much of the rest of the world and offered a new approach in the Restatement (Third) of Property: Servitudes. Under section 4.8(3) of the Restatement,

a servient estate owner can make reasonable changes in the location or dimensions of an easement, at the servient estate owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

Restatement (Third) of Property: Servitudes § 4.8(3) (2000).

Some American courts embraced the new Restatement approach to easement relocation. The highest courts in Colorado, Massachusetts, and South Dakota, for example, quickly adopted robust versions of the Restatement. Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1237–39 (Colo. 2001); M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053, 1057– 59 (Mass. 2004); Stanga v. Husman, 694 N.W.2d 716, 718–20 (S.D. 2005); Burkhart v. Lillehaug, 664 N.W.2d 41, 42–44 (S.D. 2003). The Nebraska Court of Appeal soon followed. R & S Inv. v. Auto Auctions, Ltd., 725 N.W.2d 871, 879–81 (Neb. Ct. App. 2006). Courts in Illinois demonstrated receptivity as well. 527 S. Clinton, LLC v. Westloop Equities, LLC, 932 N.E.2d 1127, 1138 (Ill. Ct. App. 2010); McGoey v. Brace, 918 N.E.2d 559, 563–67, 569 (Ill. Ct. App. 2009).

Courts in New York and Nevada, however, adopted a weaker version of the Restatement approach, limiting its application to an undefined easement, that is, an easement whose location was not defined by a metes-and-bounds description or other actions of the parties. Lewis v. Young, 705 N.E.2d 649, 653–54 (N.Y. 1998) (relying on tentative draft of section 4.8(3)); St. James Vill., Inc. v. Cunningham, 210 P.3d 190, 193–96 (Nev. 2009). Other courts limited the Restatement rule to nonexpress easements or subsurface easements. McNaughton Props., LP v. Barr, 981 A.2d 222, 225–29 (Pa. Super. Ct. 2009) (prescriptive easements); Goodwin v. Johnson, 591 S.E.2d 34, 37–39 (S.C. Ct. App. 2003) (easements by necessity); Roy v. Woodstock Cmty. Trust, Inc., 94 A.3d 530, 537–40 (Vt. 2014) (subsurface easements). Some courts rejected the Restatement altogether and stuck with the traditional mutual consent rule. See, e.g., Alligood v. LaSaracina, 999 A.2d 836, 839 (Conn. App. Ct. 2010); Weston St. Hartford, LLC v. Zebra Realty, LLC, 219 A.3d 844, 851–54 (Conn. App. Ct. 2019); Herren v. Pettengill, 538 S.E.2d 735, 736 (Ga. 2000); Town of Ellettsville v. DeSpirito, 111 N.E.3d 987, 992–97 (Ind. 2018); Stowell v. Andrews, 194 A.3d 953, 964–66 (N.H. 2018); ; MacMeekin v. Low Income Hous. Inst., Inc., 45 P.3d 570, 578–79 (Wash. Ct. App. 2002); AKG Real Est., LLC v. Kosterman, 717 N.W.2d 835, 842–47 (Wisc. 2006).

In a handful of states, legislatures enacted statutes over the years that allow certain kinds of easements—irrigation or water conveyance easements in New Mexico, Idaho, and Utah, and vehicular access easements in Idaho and Virginia—to be relocated on terms more or less similar to the Restatement. Lovett, supra, at 41–43.

The UERA

In the early 2010s, the Uniform Law Commission (ULC) began to study whether a uniform act on easement relocation would bring coherence and clarity to this increasingly disharmonious body of law. In 2018, the ULC formed a drafting committee. Over the next two years, the drafting committee labored, aided by observers from the title insurance industry, the mortgage banking industry, and a representative from the ABA’s Real Property, Probate, and Trust section. In July 2020, the ULC approved the UERA at its annual meeting. Over the last two years, two state legislatures—Nebraska and Utah— have already adopted the UERA. 2021 Neb. L.B. 501 (enacting Neb. Rev. Stat. § 76-2,128 et seq.); 2022 Utah H.B. 132 (enacting Utah Code § 57-13c-101 et seq.).

In coming years, more legislatures will likely consider adoption of the UERA. The UERA features 17 sections, including provisions setting forth definitions and addressing the requirement of good faith, the limited effect of a relocation, uniformity of application, electronic signatures, and severability. The act’s key provisions address its scope, the core relocation right and substantive conditions for relocation, procedural protections, expenses, waiver, and legal transition.

Scope

Section 3 of the UERA first states that the act applies to express easements established by grant or reservation and to non-express easements established by prescription, implication, or estoppel. UERA § 3(a). Section 3 also specifies three specific kinds of easements that are not subject to relocation under the act: (1) public-utility easements, (2) conservation easements, and (3) negative easements. Id. § 3(b). When it adopted its version of the UERA, Utah also exempted several other kinds of easements: public-entity easements, water-conveyance easements, easements held by a mine operator, and an easement associated with a highway or public transit facility. Utah Code § 57-13c-102((2). Finally, section 3 also clarifies that the UERA does not prevent a servient estate owner and an easement holder from relocating an easement by mutual consent. UERA § 3(c).

The Right to Relocate

Section 4 is the core of the UERA. It establishes a servient estate owner’s basic right to relocate an eligible easement provided the relocation does not materially (1) lessen the utility of the easement, (2) increase the burden on the easement holder in its reasonable use and enjoyment of the easement, or (3) impair “an affirmative-easement related purpose for which the easement was created.” Id. § 4(1)–(3). These conditions generally mirror section 4.8(3) of the Restatement. Section 4, however, adds four more substantive conditions for an easement relocation. The proposed relocation cannot materially (4) impair the safety of the easement holder or others entitled to use and enjoy the easement; (5) disrupt the use and enjoyment of the easement during the process of relocation, unless the servient estate owner substantially mitigates the disruption; (6) impair the physical condition, use, or value of the dominant estate or improvements on that estate; or (7) impair the value of a security interest holder’s collateral or other recorded real property interests. Id. § 4(4)–(7).

Just as with the Restatement, the basic relocation right offered in the UERA only belongs to the servient estate owner, not the dominant estate owner. Unlike the Restatement, relocation under the UERA does not hinge on an initial showing of necessity.

Procedural Protections

In response to some criticism of the Restatement, sections 5 and 6 of the UERA require a servient estate owner who seeks to relocate an easement without the easement holder’s consent to do so through a judicial proceeding. Section 5(a) thus requires a servient estate owner seeking to use the act to file a “civil action.” The rest of section 5 establishes the necessary parties for the lawsuit; provides for notice and service, including special rules for service of holders of severed, subsurface mineral interests; and specifies the contents of the complaint. Id. § 5(b)–(c). Section 6 details all of a court’s obligations when an easement relocation action is filed, including specific rules dealing with the contents of an order authorizing a relocation. Id. § 6(a)–(c). Section 6 also addresses the servient estate owner’s obligation to record an order authorizing relocation. Id. § 6(d).

Expenses

Section 7 of the act follows the Restatement by requiring the servient estate owner to pay “all reasonable expenses” of relocation and illustrates some of those expenses. It does not displace the traditional American rule for attorney fees.

Affidavit of Relocation

Section 9 of the UERA addresses another potential concern about a proposed and judicially authorized easement relocation—the possibility that a servient estate owner will commence the physical work necessary to relocate the easement but will not finish the job. Section 9 responds in two ways. First, it requires the servient estate owner to record an affidavit attesting that all the work necessary to make the easement usable in its new relocation is complete. Id. § 9(a). Second, it assures that the easement holder will have the right to use the easement in its current location until all the work necessary for relocation is completed and the relocation affidavit is recorded. Id. § 9(b).

Nonwaiver

Section 11 of the UERA departs more significantly from the Restatement by making the act’s core relocation right immune from waiver. It does this by prohibiting the “waiver, exclusion, or restriction” of relocation rights under the act, and by prohibiting parties from drafting around section 4 by requiring easement holder “consent to amend the terms of an easement.” Id. § 11(a)– (b). The final subpart of section 11 also rejects the narrow approach to easement relocation under the Restatement adopted by courts in New York and Nevada. It does this by providing that an easement relocation is not waived, excluded, or restricted even if “the location of the easement is fixed by an instrument creating the easement, another agreement, previous conduct, acquiescence, estoppel, or implication.” Id. § 11(c).

Legal Transition

The final crucial provision of the UERA is section 14, which provides that the act “applies to an easement created before, on, or after” the act’s effective date. By providing for retroactive effect, section 14 guarantees that the act will actually be useful in facilitating the relocation of easements created many years, even decades or centuries, ago. Retroactive application of the UERA will not produce a taking of a property interest, however, because the easement holder is not denied use and enjoyment of the easement. The act maintains the easement but simply allows the servient estate owner to move it to a new location that provides the same functional benefit as in the prior location, without any material diminution in the physical condition, use, or value of the dominant estate or improvements on that estate. Id. § 4(1)–(3), (6). Interestingly, the Idaho Supreme Court has already determined that retroactive application of the Idaho statute allowing for relocation of a vehicular access easement under terms roughly similar to the Restatement does not constitute a taking under either the US or Idaho constitution. Statewide Constr., Inc. v. Pietri, 247 P.3d 650, 654–56 (Idaho 2011).

Justifications

Many legal scholars and judges have weighed in on the policy arguments in favor of and against any kind of unilateral easement relocation right. Lovett, supra, at 75–91. The drafters of the UERA and the Uniform Law Commission believe the UERA adds an important element of flexibility in easement law without jeopardizing the functional interest of an easement holder in the use and enjoyment of an easement.

First, because it provides a servient estate owner with an opportunity to ask a court to approve a proposed easement relocation but does not allow the servient estate owner to engage in self-help, the UERA should encourage cooperation and good faith negotiation between the servient estate owner and the easement holder. A servient estate owner would be foolish to make any unilateral changes to the easement without first attempting negotiation, and if negotiation fails, filing a civil action to obtain judicial approval for a proposed relocation. Likewise, an easement holder will think carefully about withholding consent to a reasonable relocation request if it knows that a court could eventually authorize the relocation and if it understands that it, too, may need the servient estate owner’s cooperation in the future, particularly if it needs to adjust the manner, frequency, and intensity of easement use one day. Relatedly, disputes over the creation and existence of a non-express easement—for example, a prescriptive easement or an easement by necessity—may become easier to resolve without litigation if the servient estate owner can count on the ability to relocate such an easement if its current location becomes problematic in the future.

Next, the UERA offers an opportunity to unlock the development potential of a servient estate burdened by an easement created long ago by parties who may have not given much attention, if any, to the precise location of the easement or the ability of the servient estate owner to relocate. The economic and social gains that can result from an easement relocation under the UERA will benefit not only the servient estate owner but other market participants—for example, future homeowners, tenants, customers, and other people who might be advantaged by enhanced development of the servient estate. Crucially, these aggregate gains in welfare do not come at the expense of the easement holder because the UERA guarantees that the relocated easement must continue to serve the same “affirmative, easement-related purpose” for which the easement was created and cannot materially diminish the “physical, condition, use, or value of the dominant estate.” UERA § 4(3) & (6). The only interest that an easement holder will lose is the opportunity to hold up the servient estate owner and demand a ransom payment for consent to a proposed easement relocation.

The UERA will also help to rebalance the law of easements. Today easement holders already benefit from a wellestablished but muddy common law rule that permits the easement holder to “use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the [easement]” and to change the “manner, frequency, and intensity” of that use over time “to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefitted by the [easement.]” Restatement (Third) of Property: Servitudes § 4.10 (2000). See also Jon W. Bruce, James W. Ely Jr. & Edward T. Brading, The Law of Easements and Licenses in Land § 8.3, at 530–32 (2021– 22) (noting that “Reasonable use [of an easement] is not fixed at a particular point, but may vary from time to time. . . . Absent specific provision to the contrary, the concept of reasonableness includes a consideration of changes in the surrounding area and technological developments. These factors provide a degree of elasticity in the scope of express easements”). The UERA introduces a measure of functional reciprocity into the law of easements by giving the servient estate owner, as well as the easement holder, the ability to respond to changed conditions as long as that response does not materially harm the easement holder.

Finally, legislatures considering adoption of the UERA should keep in mind that an easement, though a valuable property interest to be sure, has never been quite the same thing as a fee simple interest in land. Not only is an easement a nonpossessory interest in land, but the easement holder generally must exercise the easement in a manner that imposes the least possible interference with the servient estate. Moreover, even when it is denominated as perpetual, an easement can be terminated for a wide variety of reasons, including abandonment and nonuse. In short, an easement has never really been as inviolable as a fee simple estate. Rather, an easement has always been more contingent and relational in nature.

Conclusion

American real estate lawyers sometimes have a tendency to view American property law in isolation. This makes some sense because the object of that law, land in the United States, stays put. However, with the UERA, American property law has an opportunity to revise the architecture of our law of easements to provide greater flexibility for servient estate owners and to rebalance the relationship between a servient estate owner and an easement holder. Many other jurisdictions around the world have already taken this step. Lovett, supra, at 25–29. In 2008, after considering developments around the world, including the Restatement, the Supreme Court of Appeal of South Africa reconsidered that country’s law on servitude relocation and discarded its early-twentieth-century version of the mutual consent rule. In its place, it fashioned a new rule based on the Restatement. Summing up its rationale, that court observed:

[p]roperly regulated flexibility will not set an unhealthy precedent or encourage abuse. Nor will it cheapen the value of the registered title or prejudice third parties.

Linvestment CC v. Hammersley 2008 (3) SA 283 (SCA) at 293 (S. Afr.). If a leading South African court can see its way toward a new rule on servitude relocation, perhaps American state legislatures will do the same when they consider the Uniform Easement Relocation Act.

Published in Probate & Property, Volume 36, No 5 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Probate & Property September/October 2022