When an easement is granted, a property owner gives another person an interest in and right to use the land which is burdened by the easement. Easements are often conveyed, for example, to give an adjacent property owner a right to cross over the land, install utilities below the surface of the land, or otherwise use the land in a way that does not prevent the landowner from continuing to use its land. In most cases, an easement runs to the benefit of an adjacent property, rather than benefitting a particular person. Accordingly, easements are generally recorded in the official records of the county where the land is located, and are valid for an extended or unlimited period of time.
A well-drafted easement agreement typically includes terms that identify the land which is burdened by and benefits from the easement, describes the location of the easement, outlines how the easement may be used (and any limitations on its use), states how long the easement will remain in place, and explains how and under what circumstances it may be terminated. The agreement may also include terms about how the easement will be maintained and at whose cost, establish indemnity and insurance obligations, and provide for dispute resolution. But the property owner who grants the easement should also consider how its property may be used going forward, and whether it may wish to relocate the easement in the future. Unless relocation rights are reserved, the owner of the burdened property may be unable to relocate the easement in the future, unless it obtains consent from the owner of the easement. That gives the easement owner considerable power to, for example, prevent development or otherwise interfere with the burdened property owner’s ability to use its land.
In an effort to address this inequity, in July of 2020, the Uniform Easement Relocation Act (“Act”) was adopted by the Uniform Law Commission, also known as the National Conference of Commissions on Uniform State Laws. Generally speaking, in jurisdictions where the Act is enacted, the owner of land burdened by an easement is allowed to relocate the easement without the consent of the easement owner. The Act applies to easements conveyed before, on, or after the date when the Act is adopted. And the Act does not allow the owner of the burdened property to waive or otherwise restrict by agreement its right to relocate the easement.
The relocation rights established by the Act are not unlimited. For example, the Act does not apply to public utility, conservation, or negative easements (i.e., an easement that restricts the use of property). If an easement is of a type which may be relocated, the proposed relocation may not hinder the utility of the easement, increase the burden on the owner of the easement, impair the purpose for which the easement was created, or impair the physical condition of value of the easement owner’s property, among other requirements. The owner of the land burdened by the easement is not permitted to disrupt the use of the easement during relocation, unless the nature and disruption of the disruption is “substantially” mitigated.
A property owner who wishes to relocate an easement using the Act is required to file a lawsuit to obtain a court order to allow the proposed relocation. The lawsuit must be filed against the owner of the easement, any lender that holds a security interest in the property, and any lessee of the easement owner’s property, at a minimum. Assuming that the court makes the factual determinations required by the Act – i.e., that the easement is of a type that may be relocated and that the Act’s conditions on relocation are satisfied – it may issue an order approving the relocation. A certified copy of the order must be recorded in the official records of the county in which the burdened land is located.
When an easement is relocated pursuant to a court order issued under the Act, the owner of the burdened property is obligated to pay all reasonable expenses associated with the relocation. The easement owner has a duty to cooperate with the relocation in good faith. When the relocation is complete, the burdened property owner must record and serve a certification that the easement has been relocated. But, if no improvements must be constructed in connection with the relocation, the recorded court order – alone – is sufficient to constitute the completed relocation.
Thus far, only Nebraska, Utah, Washington and Arkansas have enacted the Act. It is not clear whether the Act will be adopted in California or when. But until such adoption, property owners who elect to convey easements to others should consider expressly reserving the ability to relocate the easement if circumstances warrant.
Authored by Reuben, Junius & Rose, LLP Attorney Corie A. Edwards.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.