To relocate an easement, the relocation must not:
- Encroach on an area of an estate burdened by a conservation easement or interfere with the use or enjoyment of a public utility easement or an easement appurtenant to a conservation easement;
- Lessen the utility of the easement;
- After the relocation, increase the burden in the reasonable use and enjoyment of the easement;
- Impair the purpose for which the easement was created;
- During or after the relocation, impair the safety of the use and enjoyment of the easement;
- During the relocation, disrupt the use and enjoyment of the easement, unless the servient estate owner substantially mitigates the duration and nature of the disruption;
- Impair the physical condition, use, or value of or improvements on the dominant estate; or
- Impair the value of the collateral of a security-interest holder in the servient estate or dominant estate, impair a real property interest of a lessee in the dominant estate, or impair a real property interest of any other person in the servient estate or dominant estate.
To obtain an order to relocate an easement, a servient estate owner must commence a civil action and serve a summons and petition on:
- The easement holder;
- A security-interest holder in the servient estate or dominant estate;
- A lessee of the dominant estate; and
- Any other owner of a real property interest if the relocation would encroach on an area of the servient estate or dominant estate burdened by the interest.
Service of a summons and petition is not required for the owner of real property interest in oil, gas, or minerals unless the interest includes an easement to facilitate oil, gas, or mineral development.
The petition must state:
- The intent of the servient estate owner to seek the relocation;
- The nature, extent, and anticipated dates of commencement and completion of the relocation;
- The current and proposed locations of the easement;
- The reason the easement is eligible for relocation under the bill;
- The reason the proposed relocation satisfies the conditions for relocation under the bill; and
- That the servient estate owner has made a reasonable attempt to notify the holders of any public utility easement, conservation easement, or negative easement on the servient estate or dominant estate of the proposed relocation.
At any time before the court renders a final order in the action, a person who was served may file a document to waive its rights to contest or obtain relief in connection with the relocation or subordinate its interests to the relocation. On filing of the document, the court may order that the person need not answer or participate further in the action.
A court order approving relocation of an easement must:
- State that the order is issued in accordance with the bill;
- Identify the immediately preceding location of the easement;
- Describe the new location of the easement;
- Describe the mitigation required during relocation;
- Refer in detail to the plans and specifications of improvements necessary for the easement holder to enter, use, and enjoy the easement in the new location;
- Specify conditions to be satisfied to relocate the easement and construct improvements necessary for the easement holder to enter, use, and enjoy the easement in the new location;
- Include a provision for payment of expenses required by the bill;
- Include a provision requiring the parties to the civil action to act in good faith; and
- Instruct the servient estate owner to record an affidavit, if required by the bill, when the servient estate owner substantially completes relocation.
Before a servient estate owner proceeds with relocation of an easement, the owner must record, in the appropriate land records, a certified copy of the order.
The servient estate owner is responsible for reasonable expenses of relocation of an easement.
Each party to the civil action is obligated to act in good faith.
If an order requires building an improvement to relocate an easement, relocation is substantially complete, and the easement holder is able to use the moved easement, the servient estate owner is required to:
- Record, in the appropriate land records, an affidavit certifying that the easement has been relocated; and
- Send, by certified mail, a copy of the recorded affidavit to the easement holder and parties to the civil action.
Until the affidavit is recorded and sent to the parties, the easement holder may use the easement in the current location, subject to any court's order approving relocation. If a court order does not require building an improvement, recording of the order constitutes relocation.
The bill clarifies that relocation of an easement:
- Is not a new transfer or a new grant of a property interest;
- Is not a breach of a security instrument, except as otherwise determined by a court;
- Is not a breach of a lease, except as otherwise determined by a court;
- Is not a breach by the servient estate owner of a recorded document affected by the relocation, except as otherwise determined by a court;
- Does not affect the priority of the easement with respect to other recorded real property interests burdening the area of the servient estate; and
- Is not a fraudulent conveyance or voidable transaction under law.
A servient estate owner may not waive the right to relocate an easement. The bill should be interpreted in such a way as to promote uniformity among the states. The bill supersedes the federal "Electronic Signatures in Global and National Commerce Act" except for consumer disclosures. The changes apply to easements created before, on, or after the bill takes effect.
(Note: This summary applies to this bill as introduced.)