Many properties are affected by easements. An easement provides one property owner the right to use another property owner’s land. For example, a property owner (“easement holder”) may use water and sewer lines that cross a neighbor’s property (servient estate”) before connecting to the public utility lines in the street. However, there are times when a servient estate owner may find that an easement is in an inconvenient location on its property and prevents a desired use of the property.

For many years, Washington law allowed an easement to be relocated only with the agreement of both the servient estate and easement holder. This meant that an easement holder could simply refuse to agree to relocation even if a feasible, or even superior, alternative location was available. This left servient estate holders with little recourse if an easement holder was unwilling or unable to agree to reasonable relocation of the easement.

The Uniform Easement Relocation Act (UERA), codified as RCW Ch. 64.65, was enacted in 2023 and provides a new legal option for property owners seeking to relocate an easement without the agreement of the easement holder, as long as certain criteria are met. The UERA is applicable to all types of easements except public utility easements, conservation easements, and negative easements. The servient estate holder must prove that 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
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.

To seek relocation under the UERA, the burdened property owner must file a civil action in the Superior Court where the property is located. The servient estate owner has significant flexibility to determine the new location of the easement provided that it can establish that all criteria are met. If the court determines that all criteria are met, it will issue an order approving relocation and stating the new location of the easement. The servient estate owner is then responsible for all costs associated with relocating the easement, excluding attorney fees.

The easiest method to relocate an easement will continue to be via the mutual agreement by the servient estate holder and the easement holder. However, the UERA provides an alternative for property owners seeking to relocate an easement where the easement holder refuses to agree to relocation.

If you have questions about this, or other Real Property issues, the Real Estate team at Lasher is happy to help.