In July 2020, the National Conference of Commissioners on Uniform State Laws (ULC) approved for adoption in all 50 states the Uniform Easement Relocation Act (UERA).2 The ULC, drafters of such familiar state laws as the Uniform Commercial Code and The Revised Uniform Limited Liability Company Act, undertook this initiative to promote a solution to the common law prohibition against relocation of easements and, naturally, to resolve the myriad regional approaches to the issue. As the title and preamble suggest, UERA would provide the owner of property burdened by an easement (the servient estate) to obtain a court order relocating the easement on the property, provided that such relocation does not materially impair any of the utility of the easement to the easement holder (dominant estate) or the physical condition, use, or value of the dominant estate. Under UERA, the owner of the property burdened by the easement must commence a civil lawsuit seeking a declaratory judgment relocating the easement to a new location within the property after providing all potentially affected property owners with notice of the lawsuit, and at the burdened property owner’s sole cost and expense. UERA attempts to provide a legislative response to the relocation of easements within the servient estate. In one important respect, UERA’s attempt to bend the common law rule prohibiting easement relocation can be seen as an attempt to promote democratic values.3
An easement is the right of use or control of a portion of property owned by another person, or an area above or below it, for a specific limited purpose. It arises typically from a consensual agreement between two parties, although the law has long recognized the need for the creation of easements over the objections of a property owner when the easement is absolutely necessary to the full use and enjoyment of another parcel or when the parties’ conduct suggest agreement to such use. For example, by agreement, Party A is permitted to use the property of Party B to walk across the property of Party B to access the sandy beach abutting Party B’s lakefront property where Party A’s property does not enjoy private lake access. Accordingly, an easement may be used for the purpose expressed in the written instrument or, when not expressly stated, use may be determined by reference to the actual or obvious intent of the parties at the time Party B grants Party A use of Party B’s property. As such, Party B’s property “serves” the interest of Party A and is therefore commonly referred to as the “servient estate” and is characterized as “burdened” by the rights granted to Party A, the holder of the easement and therefore the “dominant estate.”
An easement creates a recognized property right in most states and can convey valuable use rights. It is in this sense far more than a mere license, which typically creates a personal privilege typically of limited duration, such as the right to occupy seat 3 in row 12 of section A of Metropolitan Stadium or to park one’s car in space 74 of ramp C of the ABC Ramps Mobility Hub. While easements, by their very nature, do not typically convey exclusive possession of the easement area to the dominant estate, the holder of the easement obtains the right to use the property of another. Similarly, the owner of the servient estate may continue the use of the easement area for its own purposes or in conjunction with the dominant estate as long as such use does not interfere with the dominant estate. In short, the easement creates a right to use property in cooperation with a third party, typically for a fee or other form of consideration. By way of further example, Party B would be allowed to develop improvements within the easement area granted to Party A, provided that such improvements do not materially hinder Party A’s access to the lake or create tripping or falling hazards en route to the beach. However, unlike fee simple ownership of property, the holder of an easement is limited to specific uses, and no other uses are permitted by either agreement of the parties or by the circumstances in which the original grant was made.
The easement is a prolific legal concept affecting rights at, below, and above the surface of the property. Easements are granted for everything under the sun, so to speak, because they stand at the crossroads of contract and real property law. For example, contracting parties negotiate rights that burden the entire property owned by another, a portion of that property, or the right to extract something from or erect something upon that property, or any combination thereof. The type of easement is left only to one’s imagination, and more exotic examples include:
easements for the lateral support of the adjoining property to permit the easement holder to drive pilings and other support objects into the burdened property to prevent a building from tipping due to poor soil conditions;
easements in which only one characteristic is fixed, the precise path of the railroad bed, for example, and the right to harvest timber that falls within 50 feet to each side from the centerline of the railroad bed (sometimes referred to as a floating easement);
an agreement between the owner of a building and a land trust or government agency permanently prohibiting the alteration of the building façade to protect its historic value while allowing the owner to continue to own and use the building, lease it, sell it, or transfer it to heirs (a façade easement); or
an agreement created to protect the dominant estate’s exposure to direct sunlight for the use of solar panels by which the owner of the servient estate is prohibited from constructing any structures that would cause shadows on the dominant estate, thus interfering with the use of a solar energy system (a solar easement).
So significant are these rights that the Internal Revenue Service has recognized them for purposes of like-kind exchanges under Section 1031 of the Internal Revenue Code.5
The rights granted to third parties include a wide range of economic interests, including for example:
the right to make use of some or all of the water naturally flowing across the surface of another’s property for irrigation of cropland or the watering of livestock or both, or to install high voltage power lines on tall towers (high tension lines);
the right to profit from the extraction of oil held in the rock formations below the surface (fracking) or the removal of precious metals and minerals such as cadmium or gold, or
the right to the free flow (i.e., unobstructed) of light and air above another’s property for the benefit of a hotel resort property with a large outdoor water feature that would be adversely impacted by the construction of a large building on the adjoining property (air rights).6
In each example, the parties negotiate for the specific limited uses to which the easement is to be put and document the agreement in writing, which is often referred to simply as the easement agreement. In examples 1 and 2, the easement granted would be characterized as an affirmative easement, allowing the easement owner to do certain acts on the property of another, whereas the easement granted in example 3 would be characterized as a negative easement, prohibiting the servient estate owner from doing certain acts on its own property that would be detrimental to the easement holder. In all cases, the easement granted can be perpetual or limited to a certain number of years or months with the language of the easement agreement controlling.
If a dispute arises over the scope of use by the holder of the easement given in an express grant, the servient estate must prove that the dominant estate has committed an act that exceeded the bounds of any legal rights that the dominant estate may have possessed. In these cases, a court would look to the language of the document describing the intended use in question and whether the actual use made of the easement by the holder of the dominant estate exceeds the scope of its rights under that language. Generally, the express terms of the easement, interpreted according to their generally accepted meaning, determine the purpose for which the easement holder may use the property. Courts typically interpret the granting language (the scope of use) against the servient estate and adopt the interpretation that is the least onerous to the benefitted party in an effort to confer on the benefitted party the greatest estate permissible under the written instrument.
In the more complicated example of an easement created, not by an express grant, but by implication arising from the conduct of both parties, the courts must negotiate a narrow line that gives fair expression of the intended use of the burdened property to both parties. Reference may be made to the unique characteristics of the property in question and the testimony of third-parties as to the intended or historical use. While courts often struggle with divining parties’ intentions, given the human propensity to recall events in a light most favorable to oneself, courts employ a reasonableness standard in arriving at the scope of use of the easement, limiting the scope of use to that necessary for the reasonable enjoyment of the easement implied by the circumstances. The court may consider the easement holder’s action in the frequency of use and out-of-pocket expenditures made to maintain the easement in determining the parties’ true intentions.
As indicated by this discussion, in most instances, two parties negotiate the terms of an easement agreement, including (i) the specific use(s) to be made by the benefited party and (ii) the specific portion of the burdened property in which the specific use(s) may occur. The importance of UERA comes to light in this context, where the settled expectations of two parties would be disturbed if one of the parties (here, the burdened party) would gain the legal right to challenge the location of the easement rights conferred by seeking to change the location of the easement crossing his or her property. Generally, the servient estate holder has rarely found comfort in its attempt to relocate a recorded easement, as the majority common law position has been that, absent a written agreement between the parties, neither the dominant nor the servient estate may relocate the easement.
The Common Law
Majority Legal Position
The common law approach to easement relocation is the majority rule in the United States. This approach aims to reflect a “traditional, contractarian vision” of property ownership that holds easement parties to the bargained-for exchange.7 Generally, the common law prohibits servient estate owners from unilaterally relocating easements.8 Accordingly, relocation under the common law hinges upon mutual agreement between the dominant and servient parties.9 While the type of easement (fixed vs. floating or limited use vs. expansive rights) may impact relocation rights, courts applying the common law majority position have proven to be inflexible on allowing unilateral relocation regardless of easement type.
The common law seeks to avoid unilateral relocation because “treating the location as variable would incite litigation and depreciate the value” of the property.10 In this view, easements are absolute, fixed property rights.11 Key themes of certainty in land ownership, fairness, and avoiding litigation repeat themselves throughout recent state court decisions rejecting the alternative approach proposed by the Restatement (Third) of Property, Servitudes § 4.8(3) (2000) (the Restatement).12 The Restatement rejects the rigidity of the common law and empowers a servient estate owner to relocate an easement over the easement holder’s objection.13 This unilateral relocation is only permitted if the servient property owner pays all expenses associated with the relocation.14 A prototypical application of common law principles is well evidenced by MacMeekin v. Low Income Housing Institute.15
In MacMeekin, the Washington Court of Appeals addressed the debate between the traditional common law and the Restatement approaches. Here, a nonprofit organization sought to build affordable housing units and desired to relocate a driveway that MacMeekin used to access his property. The new proposed driveway would continue to give MacMeekin access but would start 73 feet south of the existing driveway, proceed through a parking lot, and contain three 90-degree turns. MacMeekin refused this proposal and brought a quiet title action against the nonprofit corporation.
The MacMeekin court rejected the petition to relocate the driveway, holding firm that the common law considers easements to be valuable property rights “not subject to relocation absent the consent of both parties.”16 In a case of first impression, the court found persuasive the decisions in the majority of other state courts, as well as dicta from previous Washington Supreme Court decisions. These courts rejected the idea that a court has the power to relocate an easement already definitively located,17 and other courts expressed a reluctance to increase uncertainty in easement ownership and real estate transactions.18 To justify its holding, the MacMeekin court noted that a servient estate is free to negotiate a relocation right within an easement agreement and, absent such right, the court would be upending the settled expectations of the parties.19 Indeed, without mutual consent as a safeguard, the servient estate could seek to re-trade the agreement on a near-constant basis, disrupting expectations and investments made in reliance on the permanency of the easement agreement. In a clear reaffirmation of common law principles, the court ruled that an easement, however, formed, could not be relocated by court order.
Courts adhering to the majority approach20 do so for several key reasons:
settling expectations in real estate transactions;
safeguarding easement ownership as a property right;
promoting economic efficiency and predictable outcomes;
avoiding floodgates of litigation;
preventing judicial takings; and
For many courts, these principles are enduring. For example, in Herren v. Pettengill, the Georgia Supreme Court found the majority common law approach “sounder” based on “fairness principles” and the belief that the market, not the courts, is the appropriate place for property owners to settle disputes.21 Similarly, the Indiana Supreme Court also expressed its preference for the common law’s “bright-line rule,” in Town of Ellettsville v. DeSpirito.22 There, the court launched a full-scale assault against the Restatement approach, stating that the common law rule is easier to apply than the multifactor test of the Restatement and, among other justifications, secures economically efficient outcomes. The DeSpirito court emphasized that consent between all parties is necessary for a variety of encumbrances, including the easement before it, which featured bounds established by clear legal description. Because the agreement between the parties in DeSpirito established a fixed location for the easement, the court ruled that the common law prohibits unilateral relocation. Relying on precedent, the court decided that the common law approach was long settled and in no need of modification. DeSpirito’s analysis of the Restatement led to the conclusion that enforcing the common law approach settles expectations, avoids judicial takings, minimizes litigation, and promotes economic efficiency.
Other recent decisions affirm the emphasis on protecting parties’ expectations and promoting predictable outcomes. In Weston Street Hartford, LLC v. Zebra Realty, LLC, the Appellate Court of Connecticut sided with an easement holder after finding the servient estate was maintaining a parking lot in interference with the easement.23 The court found that the stability and predictable outcomes the common law provides outweighed the increased flexibility the Restatement provides.24 Collectively, this series of recent decisions affirming the common law approach after the Restatement’s introduction in 2000 characterize the right to relocate as a harbinger of instability for easement owners and grossly inefficient. While evaluating the Restatement, these court decisions also demonstrate the view of easement ownership as a property right that cannot be altered without approval from the easement holder despite pressure from stakeholders, including the servient estate or municipal officials, to redevelop the servient estate in the pursuit of its “highest and best use.”
Likewise, the courts addressed the issue of increased litigation that the Restatement could cause by encouraging servient owners to seek court orders allowing relocation instead of reaching an agreement with the easement holder.25 The purported efficiency of the common law rule presents itself in cases where the courts reject the Restatement based on the assumption that, without agreement between the dominant and servient parties, servient parties that wish to proceed with relocation will not hesitate to go to court or may even bypass attempts at an agreement altogether, disrupting settled expectations.26 Ultimately, this series of case law makes clear that the common law standards for relocation do not blindly favor development above all else. Consensus alone is the standard, barring all potential unilateral action taken by the servient estate.
Criticism of Common Law
However, though the common law is the majority approach and its emphasis on stability attracts many state courts to follow it, even courts following the common law criticize it. For example, in AKG Real Estate, LLC v. Kosterman, the Wisconsin Supreme Court chose to follow the common law but recognized its setbacks. The court admitted that the inability to modify the easements would be burdensome to the servient estate owner. Still, the court chose to “safeguard property rights” even though denying the relocation was “at the risk of sanctioning unneighborly and economically unproductive behavior.” In other words, the common law approach values predictability at the cost of developing property for its maximum potential, even when circumstances change. Like many easement cases, AKG Real Estate involved an effort to redevelop a servient estate.
In 1960, Louis and Angeline Chvilicek conveyed four acres of their property to their children, and in doing so established an express 30-foot easement over the four acres for ingress and egress between the property retained by the Chviliceks and the adjacent public road. In 1961, the Chviliceks granted a second right-of-way easement in the same area that was 66 feet wide, and because of the larger width, this easement could be converted into a public road. Subsequently, in 1961, Louis Chvilicek passed away and Angeline Chvilicek conveyed her remaining 76-acre parcel 50 percent to Ed and Audrey Chvilicek and 50 percent to Joyce Chvilicek and Vince White, as tenants-in-common. In 1998, Ed, Audrey, Joyce, and Vince conveyed the 76-acre parcel to AKG Real Estate, LLC, subject to the 30’ and expanded 66’ easements. Finally, in 2000 Ed and Audrey conveyed the four-acre homestead to Patrick and Susan Kosterman. Eventually, AKG approached the Kostermans with a plan to redevelop the 76-acre parcel into a residential community. In connection with such a proposal, AKG offered the Kostermans public road access to their parcel.
The Kostermans rejected AKG’s proposal for relocation, which would require them to reconfigure their driveway to connect with a cul-de-sac to receive public road access from their property. AKG’s plan would also require the Kostermans to change their street address and place their house “in an odd position relative to the cul-de-sac.” AKG argued that changed circumstances frustrated the purpose of the 1961 easement, requiring the court to allow its termination. The central purpose of the 1961 easement was to provide ingress and egress, which was not frustrated by the current changed circumstances. Furthermore, AKG’s ability to provide ingress and egress through an alternative course would not terminate the express easement. At the end of the day, easement ownership trumped new development.
Given the weight of history and rigid adherence to the common law, the result in AKG Real Estate is unremarkable. Consistent with such momentum, only six states allow some type of easement relocation, defying the common law rule. Colorado, Massachusetts, Nebraska, New York, South Dakota, and Vermont have adopted the Restatement approach. Illinois is thought to be “tentatively” moving in this direction. Other states, such as Louisiana, Kentucky, and Virginia, provide some type of statutory protection allowing unilateral easement relocation.29
Restatement (Third) Property – 2000 Revision
Section 4.83 of the Restatement
The American Law Institute recognized the inflexibility of the majority common law position when adopting in 2000 the contrarian position articulated in Section 4.83 of the Restatement. Compared to the common law approach, the Restatement gives far more flexibility to property owners burdened with an easement, though it is somewhat more restrictive than UERA.30 The approach, while gaining some traction, has only been adopted in six states since its promulgation.31
The Restatement imposes three criteria on relocation. First, the relocation cannot significantly reduce the utility of the easement to its holder. Second, the relocation cannot increase the easement holder’s burdens of full use and enjoyment. Third, the relocation cannot frustrate the easement’s essential purpose.32 The Restatement imposes a reasonableness standard upon any suggested relocation.33 The Restatement invites the court to “balance the equities” between the parties when the servient tenant seeks relocation and therefore requires a case-by-case evaluation of the facts.34 Specifically, the Restatement provides as follows:
Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not
significantly lessen the utility of the easement,
increase the burdens on the owner of the easement in its use and enjoyment, or
frustrate the purpose for which the easement was created.35
In many respects, the Restatement reflects the notion of “no harm, no foul” when it comes to easement relocation; it values flexibility for the servient estate provided that the dominant estate’s rights and interest remain substantially consistent. Clearly, the Restatement’s drafters recognized that land-use changes over time and overall utility and development may be better served by changing along with it.36
An early and leading application of the Restatement approach is found in the Colorado Supreme Court’s consideration of Roaring Fork Club, L.P. v. St. Jude’s Company.37 At issue in Roaring Fork was the relocation of irrigation and stormwater ditches serving both the dominant and servient properties. Anyone familiar with water rights and management in Colorado can appreciate the utility of irrigation and stormwater ditches to productive land use. The servient estate owner sought to develop a private golf and fishing club on its property, but the parties could not agree on relocating the ditches, prompting the servient owner to proceed with the new development anyway.
In adopting the Restatement approach, the Colorado Supreme Court claimed to enter the 21st century where competing land uses in Colorado are “proliferating.”38 The court explained that the common law rule barring unilateral relocation emerged from the fundamental concept of reciprocity. The dominant owner is not permitted to unilaterally relocate an easement, and the servient owner is similarly prohibited from doing so, striking a balance that on its face seems symmetrically fair. However, the Roaring Fork court held that the proposed ditch relocation would be subject to the constraints of the rule as well as a reasonableness test evaluating several factors, including operation and maintenance rights and costs. These overall constraints would safeguard the rights and interests of the dominant estate. Because the servient owner in Roaring Fork acted unilaterally and without a court order, the court held that the owner committed trespass by interfering with the dominant owner’s easement rights even though the proposed relocation satisfied one or more of the three requirements of the Restatement approach. While the court did not reach the issue of the appropriateness of the relocation, the opinion favors the solution. The court also expressly stated that the Restatement would not apply to fixed easements.
Three years later, the Massachusetts Supreme Court in M.P.M. Builders followed Roaring Fork by adopting the Restatement.39 However, unlike Roaring Fork, a deed described the location of the easement in question but did not address the possibility of relocation. The deed granted the easement holder the right to enter his property through three separate routes across the servient estate. The neighbor, M.P.M., sought to subdivide its parcel into seven house lots for the development of single-family homes, but the easement cut across three of the proposed lots. M.P.M. offered to create two new access easements to the dominant property but the holder of the easements declined the relocation proposal.
In analyzing the developer’s request for relocation, the court stated that the Restatement expresses a default rule favoring relocation that courts should apply whenever the dispositive instrument does not expressly prohibit relocation. The court further held that the Restatement only applies to proposed alterations to the servient estate, not the dominant estate, allowing for development and maximizing utility. The court was persuaded by the Restatement’s balancing of the easement holder’s rights with the servient estate owner’s rights. As for ensuring the value of easement interests, the court emphasized that easements are limited interests that serve particular objectives by nature, and thus do not grant the easement holder power to interfere with the development of the servient land beyond preserving its original purpose. Finally, the court referenced Roaring Fork in agreeing that the preferred course of action would be for both owners to reach an agreement, but in the absence of one, the servient owner should seek a court declaration to relocate the easement.
Since the Restatement’s 2000 arrival, some state courts have implicitly adopted its approach.40 These courts recognize the value of flexibility in certain situations regarding easement relocation. For example, New York and South Dakota have adopted a so-called “weak” version of the Restatement.41 In Lewis v. Young, the New York Court of Appeals settled a battle over a driveway’s location in favor of the servient estate, finding that a servient estate owner could relocate an easement under certain circumstances without disrupting the dominant estate’s right of access.42 Because the parties in Lewis did not describe the location of the easement in the written instrument, the court allowed its relocation. Similarly, the South Dakota Supreme Court in Stanga v. Husman allowed an easement relocation when the written instrument only referred to an “existing road” and did not expressly prohibit relocation.43
Vermont’s approach to easement relocation is an interesting compromise, borrowing from both the common law and the Restatement’s ideals, depending on the type of easement.44 While Vermont expressly rejected the Restatement approach in Sweezey v. Neel,45 the Vermont Supreme Court decided eight years later, in Roy v. Woodstock Community Trust, Inc., that it would not apply the common law rule to subsurface easements.46 The court did not overrule Sweezey but merely found that Sweezey did not stand for the “extreme position” that mutual consent was required for all types of easements. It simply reasoned that the rationales behind the common law rule, such as upsetting the “economic balance” of negotiation between the parties and uncertainty in land ownership, are not as relevant for subsurface easements.
The courts that have adopted the Restatement approach, expressly or implicitly, reveal judicial support for the right of servient tenants to develop their property.47 While this flexibility is not wholly without regulation, one may conclude that the Restatement encourages the use of easements by bolstering the rights of the servient and dominant owners. Specifically, the courts want to ensure that easement holders do not possess rights beyond what is inherent to easement ownership by granting them absolute veto power to inhibit the servient land’s beneficial development.
The Restatement’s divisive rule has prompted highly negative responses from various state courts, hindering its adoption, but has also triggered positive reactions by courts receptive to its flexibility.48 A noted real property professor even characterized the Restatement approach as a theft mechanism for servient tenants.49 Common law proponents criticize the Restatement approach as a “radical … reconceptualization of the nature of an easement,” depriving dominant estate holders of their fundamental property rights.50 Critics of the Restatement also claim that in seeking to balance the power structure between the servient and dominant estates, it gives the servient estate too much power.51 The Restatement drafters would reply that the common law rule allows a dominant estate owner to exploit the changing conditions to the servient owner’s detriment.52
Another chief criticism is the fear of increased litigation the Restatement could incite. Like the Roaring Fork and M.P.M. Builders courts, the Nevada Supreme Court expressly adopted the Restatement in 2009 in St. James Village v. Cunningham.53 The court recognized that increased litigation could occur under the Restatement approach but found this risk to be outweighed by significant public policy considerations, such as enhanced economic development of the property. The Restatement also provides no “direct rebuttal” to the common law-centered criticism that easements are unalterable property rights.54 However, its introductory comments make clear that courts should not sanction easement relocation when the location is fixed through specific descriptions or specified in a deed.55 This introductory language that expressly excludes easements “determined by the instrument,” seems to potentially clash with the drafters’ intent to include fixed easements, and this has been pointed out by courts choosing to adhere to the common law approach.56 Even courts that have expressly adopted the Restatement have held that it does not apply to express easements with fixed locations.57 The court in M.P.M. Builders stands out for applying the Restatement approach to an express easement.58
Without the Restatement approach and with strict reliance on the common law, the right to use property is virtually a possessory interest akin to fee simple. However, courts have a checkered reputation when “balancing the equities,” and many in the legal profession profess that judges should avoid policy-making of the kind engaged in by legislators. However, the Restatement approach has merit whenever relocation of the easement does not materially affect the rights of the dominant estate. It can be viewed as promoting the public policy that all property owners should be able to use their property in a manner that will increase its value, as long as the utility of the easement to the dominant estate is not diminished. Where the common law seeks to honor the intent of the original parties, the Restatement promotes the need for flexibility with changing circumstances. It begs for a case-by-case analysis in the modern age and “may pave the way to a new and perhaps civil law influenced understanding of easements and servitudes as evolving and interdependent relationships between persons with concurrent interests in the same property.”59 While the majority of states continue to follow the common law, the Restatement has generated some positive responses from state courts embracing its flexibility.60 However, courts in roughly 15 states have rejected the Restatement in favor of the common law rule, making the Restatement’s approach largely irrelevant today in easement-related disputes.61
The Uniform Easement Relocation Act
UERA entered the scene in 2020 as a “simple and practical solution” to the lack of a uniform approach across the states to unilateral easement relocation.62 The legislation adopts Louisiana’s statutory approach to easement relocation.63 If the Restatement approach seeks flexibility for the servient estate owner through a “balancing of the equities” test, UERA strikes a dagger into the traditional view of easements as static, permanent property rights that a dominant estate owner controls with “dictatorial power.”64 The ULC characterizes UERA as a “safety valve” for servient estate owners that “corrects an imbalance of power” currently allowing dominant estate owners in common law states to restrict other property owners from developing their properties.65 UERA builds on the Restatement approach but goes significantly farther in balancing the interests of the parties. The rule for relocation under Section 4 of UERA is as follows:
A servient estate owner may relocate an easement under this [act] only if the relocation does not materially:
lessen the utility of the easement;
increase the burden on the easement holder in its reasonable use and enjoyment of the easement;
impair an affirmative, easement-related purpose for which the easement was created;
during or after the relocation, impair the safety of the easement holder or another entitled to use and enjoy the easement;
during the relocation, disrupt the use and enjoyment of the easement by the easement holder or another entitled to use and enjoy the easement unless the servient estate owner substantially mitigates the duration and nature of the disruption;
impair the physical condition, use, or value of the dominant estate or improvements on the dominant estate; or
impair the value of the collateral of a security-interest holder of record in the servient estate or dominant estate, impair a real-property interest of a lessee of record in the dominant estate, or impair a recorded real-property interest of any person in the servient or dominant estate.66
Without case law to reference on this new legislation, the ULC commentary provides insight into how the rule might look juxtaposed with common law and Restatement ideals — and how courts may apply it. While Sections 4(1) through 4(3) are aligned with the Restatement, Sections 4(4) through 4(7) step beyond the Restatement and provide additional safeguards for the dominant estate owner.67 These extra terms are meant to ensure a balance is maintained not only in planning a relocation but also in executing one.
Notably, UERA takes safety considerations of the easement holders into account in Section 4(4) as well as disruption to the easement’s use during the relocation process in Section 4(5).68 The rationale behind Section 4(5) is to protect an easement holder who actively uses the easement.69 UERA also provides explicit protection for the physical condition and value of the easement that could be affected by relocation as well as the property interests of the dominant estate and others who may hold property interests in that estate.70 The ULC illustrates the factors courts should consider under each of the criteria. For example, under Section 4(6), courts may consider whether a new proposed driveway would be more expensive to maintain or difficult to use for the easement holder.71 UERA also sets guidelines to ensure that a proposed relocation would not change the easement’s primary objectives — stressed by the M.P.M. Builders court.72 A court should consider all facts related to the easement’s route and its access points, gradient, and width under Sections 4(1) through 4(4).73 Not all of these elements are explicit changes to the Restatement, but instead, codify the tests from case law, adopting the Restatement to ensure a balance between the competing interests of the parties is maintained.74 Under Section 4(5), a court could require the construction of a new easement prior to diverting traffic away from the existing easement.75 Finally, Section 4(7) allows others with property interests, specifically security-interest holders, to object to a proposed relocation if they can show that the relocation will materially impair their real property interests.76
To date, only Nebraska has enacted the controversial legislation, and four other states have introduced it.77 The bill seems to have stalled in the Colorado Senate.78 Nevada introduced the legislation but, as of April 2021, officially rejected it, reasoning that the bill lacked the necessary stakeholder support to pass due to concerns over how UERA would impact private roads owned by local governments in the state.79 Time will tell how UERA will be applied by courts in Nebraska and future states that may adopt it. Given states’ minimal adoption of the Restatement, adoption of UERA may similarly fall flat.80
Analysis of Common Law, Restatement, and UERA Approaches
Upsetting Settled Expectations
The essential question before courts and legislatures is whether to supplant longstanding property law concepts with an overriding principle of “no harm, no foul,” by which servient estate owners would gain the right to relocate burdensome easements that prohibit the development of their property, provided no such relocation creates a material detriment to the benefitted party. To date, a majority of states have answered in the negative. In these jurisdictions, the common law has been and remains the controlling approach to easement relocation. For some, the weight of precedent provides sufficient grounds for maintaining longstanding, static relationships, even if such a position hinders the development of the servient estate. For example, the DeSpirito court clung to its jurisdiction’s “clear, bright-line rule” that has been relied on by property owners for many years.81 The common law is meant to protect the intent of the parties from what is viewed as an unexpected and unwelcome incursion on the parties’ original agreement. However, an undeniable downside to the common law is its effect of chaining servient owners to an agreement that could make less sense and provide less mutual benefit as the years go by.
The inflexible approach of the common law does little to foster development or redevelopment in the modern era, and rigid adherence to ancient practice may make little sense in the 21st century.82 Despite providing predictability and uniformity, the common law approach can also lead to “deadlock” when an easement holder rejects a servient estate owner’s request for easement relocation, leaving no recourse for the servient estate,83 as reflected in AKG Real Estate. In fact, dominant estate owners have been known to demand payment from the servient estate prior to agreeing to a relocation, leading to power struggles and impeding a property’s modern development.84 The Restatement and UERA reject the common law’s contractual underpinnings in favor of a fungible approach to easements. The Restatement recognizes that unilateral relocation can be appropriate when reasonable, and UERA echoes this sentiment. Both approaches have several key strengths in common, including providing the servient estate with a right to change its property with the times and free the property from what could be a true burden from the easement agreement. Both the Restatement approach and UERA modernize real estate transactions. While settled expectations may be upended, society benefits from continuous property development and maximum utility. Both approaches also encourage the most productive use of an easement while decreasing the risk that the easement holds the servient estate back from its most productive use.85
Common law proponents would consider upending the settled expectations of the dominant and servient owners, as well as surrounding properties, an obvious weakness of both the Restatement and UERA. However, while UERA does give servient owners welcomed flexibility, it still places burdensome requirements on any unilateral relocation. UERA’s requirements for unilateral relocation are more onerous and exhaustive than the Restatement’s requirements. Another weakness of UERA is that the statute erroneously requires good faith on all parties to the litigation and not just the parties to the easement agreement. This may leave third parties vulnerable to being sued and forced to hire counsel to defend themselves. This feature of the statute is an absurd enlargement of the legislative function.
UERA Expands Flexibility
UERA seeks to bring clarity to the scope of permitted easement relocations. Building upon M.P.M. Builders court’s adoption of the Restatement and explanation of the common law, UERA clarifies that the act of relocating an easement pursuant to its terms is a right that only belongs to the servient estate owner.86 The purpose of this is to maximize the servient property’s utility without taking away from the dominant owner’s rights or the property’s value.87 Further, UERA’s relocation rule applies to express easements as well as easements by prescription, necessity, estoppel, implication, or another method.88 However, UERA expressly excludes public utility, conservation, and negative easements.89
The rationales behind UERA borrow from and build upon the Restatement’s goals. The ULC explains that a driving force behind this law is to increase a servient estate’s utility and foster its development without decreasing a dominant estate’s functional benefit.90 The ULC recognized that parties often may not contemplate the future location of an easement when it is first established.91 The unbalanced relationship that can develop between the dominant and servient estate holder because of changed circumstances can create a “bilateral monopoly” that the ULC seeks to prevent.92 The ULC also claims that UERA will “lower the temperature” of disputes between property owners regarding implied or non-express easements by expressly including easements created by necessity, estoppel, prescription, or implication.93
UERA also establishes a set process for a servient estate owner to request an easement relocation. UERA prohibits servient estate owners from “engaging in self-help” by instead requiring them to file a civil action and include specified content in the complaint or petition.94 As under the Restatement, under the UERA the servient estate owner is responsible for all “reasonable” expenses associated with the relocation, but UERA enumerates specific examples of expenses incurred by relocation that the servient estate owner must cover, such as expert fees.95 While UERA contains beneficial provisions to both dominant and servient estate owners, other provisions are controversial and have even been called “troubling.”96 UERA applies to express easements with fixed locations, a point of contention between states following the common law and states following the Restatement.97 A major difference between UERA and the Restatement is that the servient owner’s right to relocate cannot be waived even if the contract or creating instrument waives the right, or the easement’s location is fixed.98 Unlike the Restatement that allows the parties to contract against unilateral relocation, the servient owner’s right under Section 11 of UERA still applies if the dispositive instrument requires mutual consent.99 The purpose behind Section 11 is to prevent “boilerplate contract terms” from frustrating UERA’s usefulness to the parties in the future.100 However, this provision does not prevent the parties from forming an agreement to relocate an easement through mutual consent outside of UERA.101 UERA also applies retroactively.102 The ULC maintains that this retroactive application does not deny easement holders their rights as property owners or the functional benefits of the easement.103
UERA’s purpose is to “fill in the gaps” left by the Restatement in the scope and criteria for relocation and provides safeguards for the dominant estate owner.104 It flouts the rigidity of the common law’s unwavering reliance on mutual consent and, instead, encourages increasing a property’s maximum utility and beneficial development. Yet, it builds on the Restatement’s emphasis on flexibility while still honoring the rights of the dominant estate holder. While common law proponents would view the legislation as an attack on property rights and contract principles, the pliability UERA provides can be seen as positive.
Perhaps now more than ever, competing land uses should be promoted, not discouraged. This point is made eloquently by the court in Roaring Fork:
In other areas of property law, the law in Colorado has begun to recognize that the competing uses between two interested owners should be accommodated, if possible, and that inflexible notions of dominant and servient estates do little to advance that accommodation.105
One only has to consider the cooperation required of both the surface estate owner and the owner of a severed mineral estate within the same property for each party to maximize their interests; accommodation would be key to success for both parties. But more than a mere balancing of the equities or fairness approach, UERA takes the spirit of the Restatement, encouraging the development of burdened property that might otherwise remain vacant or underutilized by its owner, forward by creating a statutory remedy for an aggrieved servient estate. In the interest of maximizing a limited resource’s potential, UREA frees the burdened property of the yoke that is the restrictive easement, provided no appreciable harm is done to the easement holder, and the costs of such relocation are borne solely by the servient tenant.
Society as a whole generally benefits from development. No one can argue that the treasury is harmed by increasing the tax base, and the acceptance of mixed-use properties in the United States is seen as a boon for modern society. Removing obstacles to development seems like a net positive to society, notwithstanding the downside to displaced communities in gentrified neighborhoods. We recognize that UERA is a radical departure from settled principles of law and practice. Settled expectations of the dominant estate and parties are upended. Nonetheless, UERA modernizes the approach to what are typically very important properties rights.