There’s a New Real Estate Law! Washington’s Uniform Easement Relocation Act
Washington’s Uniform Easement Relocation Act (“UERA”) – effective on July 23, 2023 – allows a landowner burdened by an easement to relocate that easement in certain circumstances, even absent the consent of the neighboring landowner who is benefitted by that easement.
The UERA – codified as RCW 64.65 – applies to all easements created by express grant, reservation, prescription, implication, necessity, estoppel, or other method, regardless of the date of easement creation. However, UERA does not apply to public utility easements, conservation easements, negative easements, or relocation of easements by consent.
Qualifying for Easement Relocation
Under UERA, a servient estate owner may unilaterally relocate an easement, not including the above exceptions, so long as such relocation does not materially:
(1) Lessen the utility of the easement;
(2) After the relocation, increase the burden on the easement holder in its reasonable use and enjoyment of the easement;
(3) Impair an affirmative, easement-related purpose for which the easement was created;
(4) During or after the relocation, impair the safety of the easement holder or another entitled to use and enjoy the easement;
(5) During the relocation, disrupt the use and enjoyment of the easement by the easement holder or another entitled to use and enjoy the easement, unless the servient estate owner substantially mitigates the duration and nature of the disruption;
(6) Impair the physical condition, use, or value of the dominant estate or improvements on the dominant estate; or
(7) Impair the value of the collateral of a security interest holder of record in the servient estate or dominant estate, impair a real property interest of a lessee of record in the dominant estate, or impair a recorded real property interest of any other person in the servient estate or dominant estate.
Relocation Via Lawsuit
If the servient estate owner meets the above criteria, they may bring a lawsuit to obtain the easement relocation. The suit must name all parties with any property rights in the easement, including the benefitted neighbor, any other easement holder, security interest holder, lessee, or any other owner of a recorded real property interest if the easement relocation would encroach upon such real property. Once the court grants the relocation order, the servient estate owner must record such relocation in the proper real property records, and certified-mail a copy of the recorded affidavit to all parties to the suit.
This right of relocation created by UERA cannot be waived, excluded, or restricted by agreement. The servient estate owner is responsible for the reasonable expenses of the easement relocation, not including attorney fees.
Importantly, an easement relocation under UERA (1) is not a new transfer or new grant of an interest; (2) is not a breach, default, or trigger, of a due-on sale clause or other transfer restriction under a security instrument; (3) is not a breach or default of a lease; and (4) does not affect the priority of the easement with respect to other recorded real property interests. As such, the consequences of relocating an easement under UERA are largely limited.