By: Adam Conrady
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
The Arkansas State Legislature’s 94th General Assembly recently enacted the Uniform Easement Relocation Act (the “UERA”) during the 2023 Regular Session. The UERA was introduced by the House as HB 1408 and ultimately became enacted on April 10, 2023, as Act 505. The UERA received bipartisan support led by primary sponsors Senator Clarke Tucker (D) and Representative Matt Brown (R) and nearly passed unanimously with eighty-seven of ninety-one voting Representatives voting in favor as well all thirty-three voting Senators voting in favor. Since the Uniform Law Commission approved and recommended the UERA for enactment in all fifty states, Arkansas is the fourth state to adopt the UERA, along with Washington, Utah and Nebraska.
The UERA modifies the traditional majority rule of easement relocation that requires mutual consent to relocate an easement and gives easement holders veto power to restrict property development of the servient estate by providing an alternative procedure for Arkansans—judicial relocation of an easement. The UERA encourages the use of easements and lowers their price by decreasing the risk of restricting future property development, resulting in economic growth from development of properties. The UERA also prevents easement holders from unfairly demanding a ransom payment for consent to relocate an easement and causing economic waste of the servient estate burdened by an easement. In addition, the UERA provides flexibility and incentive for cooperation between easement holders and servient estate owners which will help alleviate easement disputes.
The UERA is advantageous for both easement holders and servient estate owners as it provides safeguards to protect the interests and property rights of all interested parties. First, easements must fall within the scope of the UERA (§ 3 of the UERA) in which certain types of easements (i.e., conservation easements, negative easements and public-utility easements) are prohibited from being relocated. Second, servient estate owners must satisfy extensive criteria for relocation (§ 4 of the UERA) including but not limited to the following: preserving the utility of the easement without burdening the easement holder or impairing the value, use or physical condition of the dominant estate, and protecting the interests and property rights of other interested parties. Third, easement relocation is subject to judicial oversight and must receive judicial approval (§ 6 of the UERA) including but not limited to the following: addressing mitigation and conditions that must be satisfied by the servient estate owner, and allocating expenses of relocation to the servient estate owner. In sum, the UERA permits a servient estate owner to increase the utility of servient estate without burdening the easement holder or diminishing the functional benefit of the easement.
Act 505 predominantly follows the recommended language of the UERA, incorporating each section of the UERA. However, the following amendments were made during the legislative process. The definition section (§ 2 of the UERA) was amended to add the definition of a telecommunications easement as a new sub-section and is defined as a “nonpossessory property interest in which the easement holder is a telecommunications, cable, or broadband provider” (codified as Ark. Code. Ann. § 18-11-702(16)). In addition, Class I, II and III railroads was added to the definition of a public utility easement (codified as Ark. Code. Ann. § 18-11-702(10)). The section outlining scope (§ 3 of the UERA) was amended to clarify that relocation of telecommunications easements are not included in the scope of Act 505 and easements that interfere with the use or enjoyment of telecommunications easements are prohibited from being relocated (codified as Ark. Code. Ann. § 18-11-703(b)(1–2)). Moreover, “easement[s] used by the State Highway Commission for highway purposes” and “easement[s] or right-of-way[s] held by a public entity” are also prohibited from relocation pursuant to Act 505 (codified as Ark. Code. Ann. § 18-11-703(b)(3–4)).
For more information on the UERA, including a full overview of each section of the UERA and the benefits of enacting the UERA in Arkansas, see my law review Note published in Volume 45, Issue 2 of the UA Little Rock Law Review.