Easements on the Move

An easement is a property right or interest in land belonging to another. The most common type of easement is an access easement, whereby the easement holder uses a road on their neighbor’s property (called the “servient/burdened estate”) to access their own property (called the “dominant/benefitted estate”). However, sometimes the location of the easement on the servient estate is inconvenient for the servient estate owner. Until recently, there was little a servient estate owner could do about a poorly located easement burdening their property.

In 2023, the Washington legislature enacted the Washington Uniform Easement Relocation Act (“Chapter 64.65 RCW” or the “Act”) which allows property owners to obtain court approval to relocate an easement that is burdening their property. Prior to the Act, servient property owners had no right to move an easement on their property without consent from the easement holder(s). Under Chapter 64.65 RCW, the servient property owner has a private right of action to move an easement on their property, so long as certain criteria are met.

The party seeking to move the easement must demonstrate that the relocation does not materially:

1. lessen the utility of the easement;
2. increase the burden on the easement holder in its reasonable use and enjoyment of the easement;
3. impair an easement related purpose for which the easement was created;
4. impair the safety of the easement holder;
5. disrupt use and enjoyment of the easement during the relocation and/or mitigate the duration and nature of the disruption;
6. impair the physical condition, use, or value of the dominant estate; or
7. impair the interests or rights of any interest hold in the servient or dominant estate.

If the Court allows the easement to be moved, the servient property owner will be responsible for all costs associated with relocating the easement. These costs include the costs of construction, permitting, mitigation, recording and title correction, experts, insurance, and any maintenance costs associated with the new location, if greater than the maintenance cost associated with the easement before relocation.

The Act applies to easements created in any manner, including easements by express grant, reservation, prescription, implication, necessity and estoppel. The statute applies even if the instrument creating the easement prohibits relocation. However, it does not apply to public utility easements, conservation easements, or negative easements.

The Act is meant to promote the best and highest use of property. However, the court has broad discretion to impose conditions of the relocation to mitigate the disruption and burden to the easement holder. Moving an existing easement, such as a road, may be an expensive endeavor. Nevertheless, the Act could be particularly useful for easements which are on paper only and have yet to be developed.

If you have property burdened by an easement, or you are an easement holder, and you have questions about the location or relocation of your easement, call Schlemlein Fick & Franklin.