Washington has, for years, required the benefited owner (the party who uses the easement) and the burdened owner (the party whose land the easement is over) to agree in order to relocate the easement location on the burdened property. Washington State courts explicitly considered a common approach used by many other states that allows the burdened owners to relocate the location of an easement after weighing the benefits to the burdened owner and the burden on the benefited owner. If moving the easement caused more benefits than burdens, courts in other states would allow the location to be moved. For decades, Washington courts held that they did not have the equitable authority to order the relocation of the easement without an agreement from all parties.
In 2023 the Washington Legislature passed the Uniform Easement Relocation Act, and it was incorporated in law under RCW 64.65. This law allows the burdened owner to relocate an easement if:
- Relocation does not lessen the utility of the easement;
- Relocation does not increase the burden on the benefited owner's use of the easement;
- Relocation does not impair the purpose of the easement;
- During or after relocation, it does not impair the safety of the owner of the benefitted property;
- During the relocation, the use by the owner of the benefited property cannot be disrupted;
- Relocation does not impair the physical condition, use or value of the benefited property or improvements on the benefited property; and
- Relocation does not reduce the value of either property if that property has a mortgage, is rented to a tenant or if there is another recorded real property interest in the property.
RCW 64.65 describes the necessary elements in a lawsuit to relocate the easement, including specific statements about the burdened owner's intent and plan for relocating the easement without causing any of the problems listed above. The judge can only order the relocation of the easement if the old and new locations of the easement are adequately legally described, all of the conditions above have been met, mitigation measures have been included in the order and payment by the burdened owner to the benefited owner are defined.
The burdened owner is responsible for paying for all permits, studies, construction costs, recording fees, title work and increased maintenance costs, if any. The goal of the process in the statute is to allow a burdened property owner to relocate and easement, so long as it does not cause any harm or cost to the benefited property owner or anyone else who may have an interest in the property.
Typically, the express terms of an easement will supersede common law principles of easement enforcement. Judges typically give incredible weight to the words agreed to by the parties. However, RCW 64.65 does not allow the parties to an easement to waive their right to relocate the easement. Any provision in the easement that prohibits relocation of the easement or requires written, unanimous consent to amend the easement will be disregarded by the courts.
RCW 64.65 is a significant departure from settled case law in Washington, but it serves a purpose in allowing a more efficient use of the burdened property when relocation of the easement does not negatively impact any other party.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
