UNIFORM RELOCATION ACT FINAL READING

Ashley Binns, Division of Legislative Services Presentation to the Virginia Uniform Commission June 30, 2020 2

UNIFORM EASEMENT RELOCATION ACT MAJOR CHANGES 3

§ 2. DEFINITIONS.

• Key terms added • Key terms amended • “Appurtenant easement” • “Easement holder” • “Conservation easement” • “” “Security instrument” • “Easement in gross” • • “Security-interest holder of record” • “Lessee of record” • “Negative easement” • “Public-utility easement” • “Utility cooperative” 4

§ 3. SCOPE; EXCLUSIONS.

• Definitions removed • “conservation easement” • “conservation organization” • “conservation purposes” • “negative easement” • “public utility easement” 5 § 4. RIGHT OF OWNER OF SERVIENT TO RELOCATE EASEMENT.

• Seven-part test  The owner of a servient estate may relocate an easement to permit use, enjoyment, or development of the servient estate only if the 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 others entitled to use and enjoy the easement; 5) During the relocation, disrupt the use and enjoyment of the easement by the easement holder or others entitled to use and enjoy the easement, unless the servient estate owner substantially mitigates the disruption (§ 8); 6) Impair improvements on or the physical condition 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 or impair the real-property interest of a lessee of record in the dominant estate or any other person whose real-property interest in the servient estate or dominant estate is adversely affected by the relocation 6 § 5. COMMENCEMENT OF CIVIL ACTION.

• Servient estate owner must commence a civil action • Must serve summons and complaint on • The easement holder • Any security-interest holder of record (servient or dominant estate) • A lessee of record with an interest in the dominant estate • Any other person whose real-property interest in either estate is affected by relocation 7

§ 5., CONT.

• Complaint must contain: • Statement of intent to seek relocation of easement • Statement of nature, extent, and anticipated dates of commencement/completion of relocation • Information sufficient to identify current and proposed locations of easement • Statement of why the easement is eligible for relocation under § 3 • Statement of why the proposed relocation satisfies the conditions for relocation under § 4 • Statement that servient owner has made a reasonable attempt to notify the holders of any public-utility easement, conservation easement, or negative easement on the servient or dominant estate. 8

§ 6. REQUIRED FINDINGS; ORDER.

• Court must determine that the servient owner has • Established that the easement is eligible for relocation under § 3 AND • Satisfied the conditions for relocation under § 4.

• The relocation order has to contain certain information • Must identify the immediately preceding location of the easement, • Describe any mitigation required during relocation, • Specify any conditions to be satisfied by servient owner, and that any related expenses must be paid by the servient owner, • Require the servient owner to record the affidavit (§ 9) once relocation is complete, etc… 9

§ 7. EXPENSES OF RELOCATION.

• All costs associated with relocating an easement must be borne by the owner of the servient estate. • Includes the cost of a professional necessary to review plans/specifications • Payment of any maintenance costs association with the relocated easement which is greater than the maintenance cost before relocation 10

§ 9. RELOCATION AFFIDAVIT.

• Once relocation is substantially complete, the servient owner must record an affidavit certifying that the easement has been relocated • Until the affidavit is recorded, the easement holder may continue to use the easement in its current location 11

VIRGINIA LAW • Code of Virginia § 55.1-304 • Servient owner may relocate an easement for ingress/egress on the servient estate by express or implied mutual consent or by petitioning the court and giving proper notice to all interested parties. 12

MAJOR DIFFERENCES

The Act Virginia Law • Favors the rights of the servient estate • Favors the rights of the easement owner while acknowledging the holder property rights of the easement holder • Tracks common law, BUT allows for • Builds off the Restatement rule & unilateral easement relocation for creates a more utilitarian approach to ingress and egress if easement relocation certain conditions are met • Applies to all non-exempt affirmative easements, no matter how created • Applies ONLY to easements for ingress and egress • Requires court approval to relocate an easement 13

QUESTIONS?