Solving the Easement Holdout Problem

As development picks up for the summer, Washington state property owners facing easement disputes will benefit from understanding the Uniform Easement Relocation Act (UERA), 64.65 RCW, which came into effect last year.

Prior to 2023, Washington was among the majority of states that adhered to a common law rule under which a property easement could not be relocated, even slightly, without the consent of both the owner of the property where the easement is located (the "servient estate") and the easement holder. In practice, this allowed an easement holder to obstruct development on the servient estate by refusing to agree to an easement's relocation, even when a comparable alternative location was available. It also meant that an easement holder could demand significant and disproportionate concessions in exchange for its agreement to relocate the easement.

This changed in 2023 when Washington passed the UERA. The UERA permits a servient estate owner to unilaterally relocate an easement on its property, provided certain criteria are met and process is followed. The UERA is based on a model law adopted by the Uniform Law Commission in 2020.

Under the UERA, a servient estate owner may initiate a civil action in state court to unilaterally relocate an easement on its property if the relocation results in a comparable easement and any temporary disruption during relocation is substantially mitigated. Additionally, the relocation may not impair recorded third-party property interests, including security or leasehold interests. See RCW 64.65.020 for a complete list of criteria. Predictably, the UERA does not apply to and cannot interfere with public utility easements, conservation easements, or negative easements (which involve a duty not to engage in certain activities on the servient estate).

If the court determines that the proposed relocation complies with the eligibility requirements, it will issue an order approving the relocation, which may include conditions for relocation and construction of improvements. Only after the order is recorded on the title may the servient estate owner proceed with relocation. While the servient estate owner is financially responsible for the civil action and relocation expenses, these costs may be significantly less than the costs and delays associated with lengthy negotiations with an uncooperative easement holder.

Of course, the most straightforward way to relocate an easement continues to be mutual consent of the parties. But when that is not possible, the UERA provides a valuable tool that balances a servient estate owner's development rights with an easement holder's right to continued use of an easement, albeit in a new location. RCW 64.65 should be consulted for additional details. Please contact DWT's land use team with questions regarding the potential impacts of this law on specific projects.

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