INTRODUCTION TO THE UERA
For years now, a group of interested parties including attorneys have made a nationwide push to adopt a uniform procedure providing for the relocation of some easements. I learned in a recent Bar Association meeting that the initiative to adopt this model law may be gaining traction in Texas.
The proposal — known as the Uniform Easement Relocation Act (UERA) — is a model law that individual states (including Texas) can enact to allow the owner of a property burdened by an easement to relocate the easement without the consent of the party that is benefited by the easement. Remarkably, most types of easements would be eligible for relocation under the UERA. A summary of the UERA is available HERE.
If adopted in Texas, UERA will impact landowners that are burdened by an easement (the servient estate owners) and the parties benefited by the easement (the dominant estate owners).
HISTORY OF THE UNIFORM EASEMENT RELOCATION ACT
The Uniform Easement Relocation Act , was approved and recommended to state legislatures by the Uniform Law Commission (also known as the National Conference of Commissioners of Uniform State Laws) in July 2020, and was characterized “as a chance to unify American easement relocation law.”
WHAT PROPONENTS OF THE UERA SAY
According to its proponents, the UERA will “provide greater flexibility for servient estate owners, allow for useful development of servient estates, but will not impose any material easement-related harm on an easement holder.” These advocates also contend that the UERA “promises to promote more mutual accommodation between servient estate owners and easement holders…. [and] accurately situates easements in the architecture of American property law.”
So far, a few states have adopted the UERA, but Texas has not. It is expected that a Bill calling for adoption of the UERA in Texas will be filed during the 2025 (89th) Legislative Session.
WHEN WOULD THE UERA APPLY?
TYPES OF EASEMENTS THAT CAN BE RELOCATED
The UERA “applies to an easement established by express grant or reservation or by prescription, implication, necessity, estoppel, or other method,” This language makes clear that the right of relocation established by the Act will apply to easements without regard to method of creation
EXCLUDED EASEMENTS NOT SUBJECT TO RELOCATION
Importantly, the UERA. excludes certain categories of easements from relocation. It also expressly prohibits relocation in certain specific situations in order to protect holders of the excluded categories of easements.
Excluded from the UERA’s scope are: (1) public-utility easements (including water pipeline easements, electric easements, etc.) ; (2) conservation easements; and (3) negative easements (such as restrictive covenants). As used in the UERA, a negative easement is “a nonpossessory property interest whose primary purpose is to impose on a servient estate owner a duty not to engage in a specified use of the estate.”
Other kinds of negative easements excluded by the UERA’s plain language are easements of light or view, the right of a dominant estate owner to demand greater lateral support than otherwise provided by the common law, easements preventing a servient estate owner from altering the scenic character of land, and restrictive covenants prohibiting industrial or commercial use of all or part of a servient estate.
KEY FEATURES AND CONDITIONS OF THE UREA
Who Can Relocate? Section 4 of the UERA establishes the servient estate owner’s (i.e. the landowner’s) right to relocate an easement eligible for relocation in those instances where relocation would not materially impair the interests of the easement holder, security-interest holders, or owners of other interests in the servient or dominant estate, or materially disrupt the use and enjoyment of the easement during the relocation.
There is no right of relocation granted to the owner of a dominant estate or any other easement holder.
No Showing of Necessity Required: Notably, there is no requirement of the servant estate owner to demonstrate that there is a necessity for the relocation.
No Material Harm: One objective of the UERA is to ensure that relocation of an easement does not cause material harm. The word “material” is key because the materiality qualification permits a relocation to proceed only if the relocation will have no effect on the easement holder, security-interest holders, or owners of other interests in the servient or dominant estate, or if a relocation will have only immaterial (i.e. negligible or trivial) effect.
No Self Help: The UERA requires a landowner to invoke and complete a Court process before relocating the easement. Self-help is not permitted.
Required Court Findings: When determining an easement relocation proceeding under the UERA, the court would be required to find that “the easement is eligible for relocation under Section 3.” This requirement protects the holder of any of the easements specifically excluded —a public-utility easement, a conservation easement, or a negative easement—from having its easement improperly relocated and also assures that the new location of an easement eligible for relocation will not “encroach on an area burdened by a conservation easement” and will not “interfere with the use and enjoyment of a public-utility easement or an easement appurtenant to a conservation easement.”
Contents of Court Order: Once a court determines that a relocation “satisfies the conditions for relocation” under the UERA, the court must issue an order authorizing the relocation and the servient estate owner to record a certified copy of that order, along with an explanatory statement, in the appropriate land records of the state. The Court’s Order must also specify the new location of the easement, the kinds of mitigation that the servient estate owner must provide during the relocation process, the plans and specifications of any improvements needed for the easement holder to use and enjoy the easement in its new location, and any other conditions of the relocation.
The Court is also required to include provisions for the payment of expenses (but NOT attorney’s fees) and to “instruct the servient estate owner to record an affidavit when the relocation is substantially complete, and to “include any other provision consistent with [the UERA] for the fair and equitable relocation of an easement.”
Notably, the “servient estate owner is responsible for reasonable expenses of relocation of an easement under this [Act].”
Recordation in Deed Records: A servient estate owner that obtains judicial approval for relocation must record, in the land records of each jurisdiction where the servient estate is located, a certified copy of the Court’s order permitting relocation.
Duty of Good Faith Following Court Order: Once a court issues an Order authorizing an easement relocation, all parties to the civil action must act in good faith to facilitate the relocation. This duty to act in good faith is grounded in an understanding of an easement as a long-term, concurrent property relationship that imposes mutual duties of accommodation.
WILL TEXAS ADOPT THE UERA?
So far, Texas’ representatives have been reluctant to push for adoption of the UERA by Texas lawmakers. Things may be different this time around, and there is a certain allure to certain provisions of the Act,
But with a busy Legislative Session dominated by school vouchers, emergency preparedness, border security and water development, I suspect that the UERA’s time in Texas won’t like;y come in 2025.
