The Uniform Law Commission (ULC) has promulgated two valuable acts governing the use and administration of easements: the Uniform Conservation Easement Act (UCEA), finalized in 1981 and revised in 2007, and the Uniform Easement Relocation Act (UERA), finalized in 2020. Twenty-five states and jurisdictions have enacted the UCEA, most recently the US Virgin Islands in 2006. The UERA has been enacted in four states, including Arkansas and Washington in 2023, and was introduced in Missouri in the 2024 legislative session.
First, the UCEA aims to provide states with a framework to step beyond the impediments imposed by the common law on the creation and administration of conservation easements. Under the common law, conservation easements are classified as negative (they limit the development of the restricted land) and in gross (the easement holder does not own an adjacent benefitted parcel). The common law fails to provide significant recognition of negative easements. Accordingly, the UCEA was drafted to allow parties to create conservation easements free of the restrictions of the common law and to prevent those burdened by a conservation easement from arguing that a novel negative burden improperly binds them.
In states that have enacted the UCEA, landowners can take advantage of the act’s clear parameters to create a conservation easement. Conservation easements create an opportunity for landowners to ensure that our precious natural resources are preserved and protected for future generations. In exchange, landowners who create conservation easements are provided significant tax benefits: a conservation easement created in a UCEA state qualifies for the IRS’s conservation easement safe harbor.
To create a conservation easement, a landowner needs to contract with a conservation organization that will benefit from the easement. For example, a landowner who wishes to preserve a tract of their land near a waterway could sell or donate the rights to develop the land to a public or private conservation organization. Once the easement is created, the conservation organization ensures the land is not developed. Alternatively, conservation easements can have a narrower scope, such as setting water quality requirements or prohibiting timber harvesting. Under the UCEA, conservation easements can be created easily and tailored to individual landowners’ needs and goals.
Second, the UERA provides flexibility for landowners whose properties are already burdened by an easement. Under the common law, easements can be relocated only with the mutual consent of both the dominant and servient estate owners. Unfortunately, in states that have yet to enact UERA, the common law can lead to gridlock and land waste.
For example, a farmer may own an easement that passes through the middle of a small undeveloped parcel, allowing the farmer access to a county road. Under the common law, if the landowner wants to build a home on the undeveloped parcel, construction may only be feasible if the farmer agrees to the relocation of the easement. Although the neighbors often cooperate and reach an agreement that both consider satisfactory, sometimes this does not happen—the farmer could withhold her consent for relocation indefinitely. In some cases, this power imbalance leads to extortion, with the farmer demanding a large sum to authorize the relocation, even if the newly relocated easement would not harm the farmer and could even result in a new, paved driveway to access the county road.
If this parcel is located in a state that has enacted UERA, the landowner could file suit and request the court to authorize the relocation of the easement. Several conditions must be met, however, for the relocation to move forward: the easement must be as useful after relocation as it is in the current location; there can be no increased burden upon the farmer; the easement must serve the same purpose as it did previously; and it cannot reduce the value or condition of the farmer’s property. If the court approves the relocation, then the landowner can begin constructing the new easement, but he must pay for all of the costs associated with the relocation and allow the farmer to continue to access her existing easement until the new easement is ready for use.
In states that have enacted UERA, attorneys can negotiate easements for their clients, understanding that these easements can be flexible to changing circumstances and new developments. For attorneys whose clients have land burdened by an easement and wish to relocate, UERA creates a new tool to foster cooperation between the parties.
