Relocating Easements: Understanding § 4.8(3) and the UERA

Written by James Neeld

I recently had to resolve the issue of a developer needing to relocate a very old water line on a tract of land under a blanket easement. The most direct answer is (as always) to get the consent of the easement holder. Of course this would result in the easement holder wanting something…typically money and typically an unreasonable amount of money. This leads of course to the question of whether or not the land owner (servient estate) can unilaterally move the improvements within the easement and relocate the easement. Below is a summary of my research. Who knew there was a Uniform Easement Relocation Act that was drafted in 2020? As with all of my articles, I am not providing you legal advice, you are not my client and you should aways do your own research and engage your own professionals for your own legal issues. Good luck.

Restatement (Third) of Property: Servitudes § 4.8(3) and the Uniform Easement Relocation Act

Section 4.8(3) of the Restatement (Third) of Property: Servitudes marks a significant evolution in American servitude law. It permits the servient estate owner to unilaterally relocate an easement—absent an express prohibition—so long as the relocation (a) does not significantly lessen the utility of the easement, (b) does not increase the burdens on the easement holder, and (c) does not frustrate the easement’s purpose.¹ The section aims to modernize easement doctrine by accommodating the changing needs of servient landowners, particularly in developed or redeveloping areas where strict adherence to static easement locations may impede reasonable land use.

Courts adopting § 4.8(3) have generally done so out of recognition that the traditional rule—requiring mutual consent for any easement relocation—confers disproportionate veto power on the dominant estate. These courts view the Restatement’s reasonableness standard as better aligned with contemporary land use planning. For example, in M.P.M. Builders, LLC v. Dwyer, the Massachusetts Supreme Judicial Court adopted § 4.8(3) to prevent dominant estate owners from using easements as tools of obstruction, enabling instead a servient owner to initiate relocation without impairing the dominant estate’s rights.² The Colorado Supreme Court, in Roaring Fork Club, L.P. v. St. Jude Co., similarly embraced the flexibility of the Restatement by remanding for application of its standard, implicitly rejecting a rigid application of the common law rule.³ Nevada’s high court in St. James Village, Inc. v. Cunningham took this further, explicitly adopting the Restatement and affirming that unilateral relocation may be permissible where it does not materially burden the easement holder.⁴ These courts underscore the idea that fixed easement locations—particularly those implied or general in description—need not become permanent obstacles to otherwise reasonable development.

Parallel to these judicial trends, the Uniform Law Commission promulgated the Uniform Easement Relocation Act (UERA) in 2020, offering a legislative framework for unilateral easement relocation.⁵ Modeled in part on § 4.8(3), the UERA goes further by prescribing a judicial process through which the servient estate owner may petition a court for relocation. The Act is carefully limited: it excludes public utility easements and conservation easements, requires that relocation not diminish the utility of the easement, and mandates that the servient owner bear all associated costs. It reflects the growing policy consensus that certain easements, especially those overbuild or general in nature, should not freeze land in place. Although adoption of the UERA has been limited to a few jurisdictions as of this writing, its development signals broader institutional support for the Restatement’s core principle of reasonable relocation.

Nevertheless, not all jurisdictions have embraced the Restatement or the UERA. Courts in states such as New Hampshire have rejected § 4.8(3) on the grounds that unilateral relocation threatens to erode the certainty and security that easements have traditionally provided. In Stowell v. Andrews, the New Hampshire Supreme Court declined to adopt the Restatement, expressing concern that allowing relocation based solely on a reasonableness standard invites litigation, undermines recorded property interests, and deviates from the bargained-for nature of servitude rights.⁶ Critics argue that easements, as nonpossessory interests in land, require spatial certainty to preserve marketability and prevent opportunism by servient landowners.⁷ These courts maintain that any shift away from the mutual-consent rule should come through legislative action, not judicial reform.

Summary

Section 4.8(3) of the Restatement (Third) and the Uniform Easement Relocation Act collectively reflect a modernizing trend in American servitude law, aimed at balancing the legitimate interests of dominant estate owners with the practical needs of servient landowners in a changing built environment. Courts in Massachusetts, Colorado, and Nevada have embraced these principles as tools of pragmatic land governance. Others, such as New Hampshire, remain skeptical—invoking concerns about legal certainty, increased litigation, and the erosion of vested property rights. As jurisdictions continue to confront the competing demands of predictability and flexibility, § 4.8(3) and the UERA remain focal points in the evolving law of easements.

Footnotes

  1. Restatement (Third) of Property: Servitudes § 4.8(3) (Am. L. Inst. 2000).
  2. M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 809 N.E.2d 1053 (2004).
  3. Roaring Fork Club, L.P. v. St. Jude Co., 36 P.3d 1229 (Colo. 2001).
  4. St. James Village, Inc. v. Cunningham, 210 P.3d 190 (Nev. 2009).
  5. Uniform Easement Relocation Act (Unif. L. Comm’n 2020), https://www.uniformlaws.org/committees/community-home?CommunityKey=81d609c0-dfa3-4f10-b638-eedf421cd178.
  6. Stowell v. Andrews, 168 N.H. 42, 120 A.3d 1131 (2015).
  7. See Maureen E. Brady, The Illusion of Flexibility: Section 4.8(3) of the Restatement (Third) of Property: Servitudes and the Unilateral Relocation of Easements, 25 Prob. & Prop. 36, 39–40 (2011) (arguing that § 4.8(3) undermines reliance on recorded property boundaries and increases litigation risks).