Uniform Easement Relocation Act Signed into Law

By Carl A. Rubinstein | Related Practice: Real Estate

On March 30, 2023, Governor Inslee signed the Uniform Easement Relocation Act into law. Based on a 2020 model from the Uniform Law Commission, the Act provides a new mechanism for servient estate owners to relocate existing easements on their property. Intended to allow property owners to seek the highest and best use of their land while also protecting easement holders’ rights, the Act allows a landowner to file a civil action seeking court approved relocation of most types of easements.

Property owners burdened by easements will now be able to seek unilateral easement relocation without the need for the benefited party’s consent or agreement. The Act also gives burdened property owners considerable leeway in determining the placement of a relocated easement, with easement holders’ recourse limited to arguing that a proposed location violates one of several threshold criteria of the Act. The Act can also be applied retroactively to easements in existence prior to the effective date of the law, and is broadly applicable to all types of easements except for public utility easements, conservation easements, and negative easements (i.e., negative covenants).

Though burdened property owners are responsible for reasonable costs associated with relocation, and relocation does require filing a civil action, the new law otherwise provides a relatively straight-forward way to relocate most easements regardless of their tenure or the nature of their use. The Act holds the potential to allow property owners to remove long-standing impediments to development without the need for costly and often acrimonious disputes.

To be eligible, the burdened owner must demonstrate that the proposed relocation does not: (1) decrease the utility of the easement to the benefited party; (2) increase the burden on the benefited party to use and enjoy the easement; (3) impair a purpose for the underlying easement’s creation; (4) impair the safety of the benefited party or others entitled to use the easement; (5) disrupt the benefited party’s use and enjoyment of the easement during relocation, unless adequately mitigated; (6) impair the physical condition, use, or value of the benefited property or improvements thereon; or (7) impair the value of a security interest holder’s collateral in either the benefited or burdened property, impair a lessee of record’s interest in the benefited property, or impair a recorded real property interest of any other person in either the benefitted or burdened property.

Absent a clear failure to satisfy the above criteria, easement holders will have little, if any, ability to oppose relocation of even long-standing and long-relied upon easements. Although the subjective nature of the multiple prerequisites listed above does give easement holders room to dispute relocation, it could also be argued that these seven conditions represent a bare minimum for protecting an easement’s utility and value. Aside from straight-forward arguments about decreased utility or increased burdens, perhaps the most expansive basis to oppose relocation will be found in the final criteria, which involves the easement’s value to a third party. For example, a lender’s unwillingness to revise a security instrument’s legal description (or a borrower’s inability to do so under the terms of their loan documents) may be sufficient to quash a proposed relocation. Regardless, easement holders will need to account for less permanence of easement locations going forward, with limited tools to prevent future relocation. Indeed, the Act specifies that a burdened property owner’s right to seek easement relocation under the Act cannot be waived in advance by agreement.

It does not appear that real estate excise tax is applicable to easement relocations under the Act. Despite various requirements to record notice of a relocated easement with the applicable county and to record an affidavit certifying the easement’s relocation, the express language of the Act confirms that easement relocations do not function as transfers of real property or as grants of a new interest in real property. Though not explicitly exempted from real estate excise tax, easement relocation under the Act likely does not fit under the definition of a “sale” under RCW 82.45.010.

The Uniform Easement Relocation Act will take effect on July 23, 2023.

To learn more, please contact Carl Rubinstein of the Stokes Lawrence Real Estate Group at (206) 892-2116.