Easements and Change

Disputes over easement relocation have a long and tortured history in American law, much more complex than the orthodox view of easement law has acknowledged. The majority mutual consent rule evolved over two centuries, but courts and judges in some states have always resisted remorseless application of the rule. Outside of the United States, many countries have employed versions of the civil law servitude relocation rule first adopted in France in 1804 and used in Louisiana for two centuries. Promulgation of Section 4.8(3) of the Restatement (Third) of Property: Servitudes in 2000 lead to a significant re-evaluation of easement relocation law in the United States. Today some form of unilateral relocation is permitted in at least half of the states and courts in five states have adopted robust versions of the Restatement approach to easement relocation.<br><br>The Uniform Easement Relocation Act (the U.E.R.A), approved and recommended to state legislatures by the Uniform Law Commission in July 2020, offers state legislatures a chance to unify American easement relocation law. The U.E.R.A. builds upon the doctrinal innovation of the Restatement but refines and strengthens the Restatement approach to easement relocation. It establishes a significant but nuanced easement relocation right and nests it within a carefully constructed easement relocation procedural regime. The U.E.R.A. will provide greater flexibility for servient estate owners, allow for useful development of servient estates, but will not impose any material easement-related harm on an easement holder. The U.E.R.A. promises to promote more mutual accommodation between servient estate owners and easement holders. It also more accurately situates easements in the architecture of American property law.