Relocation of Easements
Under the common law of property, the relocation of an easement, once established, requires the mutual consent of the easement holder and the servient estate owner. In theory, this traditional rule protects the property rights and expectations of both parties. In practice, the rule can prevent development or enjoyment of the servient estate by giving the easement holder a veto over any proposed relocation of the easement—even when relocation would not cause the easement holder any additional burden. Critics contend some easement holders abuse the rule by extorting payment from the servient estate owner for consenting to a move.
The common law rule is not universal. Louisiana’s statute on relocation of servitudes is based on the Napoleonic Code and states:
The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.
If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.
La. Civ. Code art. 748 (emphasis added).
In other words, a servient estate owner in Louisiana may unilaterally relocate an easement burdening the property if the new location is equally convenient and the servient estate pays for the relocation. Kentucky adopted a similar law in the 1930s.
In 2000, the American Law Institute published the Restatement (Third) of Property: Servitudes, which proposed a new standard for relocation of easements based on the minority rule of Louisiana and Kentucky:
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
(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). Since the 1990s, courts in 20 states have authorized some form of unilateral relocation of easements by the servient estate owner, with various limitations. John A. Lovett, Diane B. Davies, and James Charles Smith, A Deep Dive into Easements, The ACREL Papers, 23-108 (Fall 2017). State-specific variations include:
- Relocation permitted with pre-approval by a court;
- Relocation permitted only if the specific location is undefined in the original easement documentation;
- Relocation permitted only for sub-surface easements;
- Relocation permitted only for implied and prescriptive easements; and
- Relocation permitted if the adverse effect on the servient estate substantially outweighs the inconvenience to the easement holder.
Courts in another 15 states and the District of Columbia have rejected the Restatement approach in favor of the traditional common law rule. Id. The status of the law in the remaining states is unclear, either because courts have not addressed the issue or because the only authority on point is very old.
In this uncertain legal environment, the rights of easement holders and servient estate owners depend upon the jurisdiction where the property is located. To clarify and standardize the law, the Uniform Law Commission (ULC) accepted a proposal from the Joint Editorial Board on Uniform Real Property Acts to draft a uniform law on the relocation of easements other than utility easements. The ULC expressly omitted utility easements from the scope of this project because experience has shown most major public utilities will consent to relocation of easements at the servient landowner’s expense when feasible. Also, proponents of reform believed public utilities with the power of eminent domain would likely oppose further regulation of their property rights. Therefore, any future uniform law on relocation of easements will expressly exclude easements held by public utilities.
The new Drafting Committee on Relocation of Non-Utility Easements is chaired by Commissioner Ellen Dyke of Virginia. The Reporter is Professor John A. Lovett of the Loyola University New Orleans College of Law, who has written extensively on the subject of easements. The committee will solicit input from all interested stakeholders, including organizations representing real estate developers, conservation advocates, title insurers, and recording offices. The first drafting meeting will be held November 2-3, 2018.
For more information, or to register as an Observer to the drafting committee, visit www.uniformlaws.org.