Uniform Easement Relocation Act comes to Texas

The text as introduced · 2,659 words

89R2393 DRS-F

By: Middleton
S.B. No. 1009

A BILL TO BE ENTITLED

AN ACT

relating to the adoption of the Uniform Easement Relocation Act.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 5, Property Code, is amended by adding

Subchapter H to read as follows:

SUBCHAPTER H. UNIFORM EASEMENT RELOCATION ACT

Sec. 5.251. SHORT TITLE. This subchapter may be cited as

the Uniform Easement Relocation Act.

Sec. 5.252. DEFINITIONS. In this subchapter:

(1) "Appurtenant easement" means an easement tied to

or dependent on ownership or occupancy of a unit or a parcel of real

property.

(2) "Conservation easement" means a nonpossessory

property interest created for one or more of the following

conservation purposes:

(A) retaining or protecting the natural, scenic,

wildlife, wildlife habitat, biological, ecological, or open space

values of real property;

(B) ensuring the availability of real property

for agricultural, forest, outdoor recreational, or open space uses;

(C) protecting natural resources, including

wetlands, grasslands, and riparian areas;

(D) maintaining or enhancing air or water

quality;

(E) preserving the historical, architectural,

archeological, paleontological, or cultural aspects of real

property; or

(F) any other purpose under Chapter 183, Natural

Resources Code.

(3) "Dominant estate" means an estate or interest in

real property benefited by an appurtenant easement.

(4) "Easement" means a nonpossessory property

interest that:

(A) provides a right to enter, use, or enjoy real

property owned by or in the possession of another; and

(B) imposes on the owner or possessor a duty not

to interfere with the entry, use, or enjoyment permitted by the

instrument creating the easement or, in the case of an easement not

established by express grant or reservation, the entry, use, or

enjoyment authorized by law. A duty not to interfere can be

inferred from the scope and nature of:

(i) a grant or reservation; or

(ii) the entry, use, or enjoyment

authorized by law.

(5) "Easement holder" means:

(A) in the case of an appurtenant easement, the

dominant estate owner; or

(B) in the case of an easement in gross, public

utility easement, conservation easement, or negative easement, the

grantee of the easement or a successor.

(6) "Easement in gross" means an easement not tied to

or dependent on ownership or occupancy of a unit or a parcel of real

property.

(7) "Lessee of record" means a person holding a

lessee's interest under a recorded lease or memorandum of lease.

(8) "Negative easement" means a nonpossessory

property interest whose primary purpose is to impose on a servient

estate owner a duty not to engage in a specified use of the estate.

(9) "Person" means an individual, estate, business or

nonprofit entity, public corporation, government or governmental

subdivision, agency, or instrumentality, or other legal entity.

(10) "Public utility easement" means a nonpossessory

property interest in which the easement holder is a publicly

regulated or publicly owned utility under federal law or law of this

state or a municipality. The term includes an easement benefiting

an intrastate utility, an interstate utility, a utility

cooperative, a common carrier pipeline, a county, a municipality,

or any entity created or operating under:

(A) Section 52, Article III, Texas Constitution;

(B) Section 59, Article XVI, Texas Constitution;

(C) Chapter 375, Local Government Code;

(D) Chapter 431, Transportation Code; or

(E) Chapter 49, Water Code.

(11) "Real property" means an estate or interest in,

over, or under land, including structures, fixtures, and other

things that by custom, usage, or law pass with a conveyance of land

whether or not described or mentioned in the contract of sale or

instrument of conveyance. The term includes the interest of a

lessor and lessee and, unless the interest is personal property

under law of this state other than this subchapter, an interest in a

common-interest community.

(12) "Record," used as a noun, means information that

is inscribed on a tangible medium or that is stored in an electronic

or other medium and is retrievable in perceivable form.

(13) "Security instrument" means a mortgage, deed of

trust, security deed, contract for deed, lease, or other record

that creates or provides for an interest in real property to secure

payment or performance of an obligation, whether by acquisition or

retention of a lien, a lessor's interest under a lease, or title to

the real property. The term includes:

(A) a security instrument that also creates or

provides for a security interest in personal property;

(B) a modification or amendment of a security

instrument; and

(C) a record creating a lien on real property to

secure an obligation under a covenant running with the real

property or owed by a unit owner to a common-interest community

association.

(14) "Security-interest holder of record" means a

person holding an interest in real property created by a recorded

security instrument.

(15) "Servient estate" means an estate or interest in

real property that is burdened by an easement.

(16) "Unit" means a physical portion of a

common-interest community designated for separate ownership or

occupancy with boundaries described in a declaration establishing

the common-interest community.

(17) "Utility cooperative" means a nonprofit entity

whose purpose is to deliver a utility service, such as electricity,

oil, natural gas, water, sanitary sewer, storm water, or

telecommunications, to its customers or members and includes an

electric cooperative, rural electric cooperative, rural water

district, and rural water association.

Sec. 5.253. SCOPE; EXCLUSIONS. (a) Except as otherwise

provided in Subsection (b), this subchapter applies to an easement

established by express grant or reservation or by prescription,

implication, necessity, estoppel, or other method.

(b) For purposes of this subchapter, any of the following

changes or modifications is considered to be a relocation of an

easement:

(1) a change to the physical location of an easement;

(2) a change to the dimensions of an easement; or

(3) the modification of a blanket, undefined, or

general easement to define the specific physical location of the

easement.

(c) This subchapter may not be used to relocate:

(1) a public utility easement, conservation easement,

or negative easement; or

(2) an easement the proposed location of which would

encroach on an area of an estate burdened by a conservation easement

or would interfere with the use or enjoyment of a public utility

easement or an easement appurtenant to a conservation easement.

(d) This subchapter does not apply to relocation of an

easement by consent.

Sec. 5.254. RIGHT OF SERVIENT ESTATE OWNER TO RELOCATE

EASEMENT. A servient estate owner may relocate an easement under

this subchapter 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 another entitled to use and enjoy the

easement;

(5) during the relocation, disrupt the use and

enjoyment of the easement by the easement holder or another

entitled to use and enjoy the easement, unless the servient estate

owner substantially mitigates the duration and nature of the

disruption;

(6) impair the physical condition, use, or value of

the dominant estate or improvements on 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, impair a real property interest of a lessee of

record in the dominant estate, or impair a recorded real property

interest of any other person in the servient estate or dominant

estate.

Sec. 5.255. COMMENCEMENT OF CIVIL ACTION. (a) To obtain an

order to relocate an easement under this subchapter, a servient

estate owner must commence a civil action.

(b) A servient estate owner that commences a civil action

under Subsection (a):

(1) shall serve a summons and petition on:

(A) the easement holder whose easement is the

subject of the relocation;

(B) a security-interest holder of record of an

interest in the servient estate or dominant estate;

(C) a lessee of record of an interest in the

dominant estate; and

(D) except as otherwise provided in Subdivision

(2), any other owner of a recorded real property interest if the

relocation would encroach on an area of the servient estate or

dominant estate burdened by the interest; and

(2) is not required to serve a summons and petition on

the owner of a recorded real property interest in oil, gas, or

minerals unless the interest includes an easement to facilitate

oil, gas, or mineral development.

(c) A petition under this section must state:

(1) the intent of the servient estate owner to seek the

relocation;

(2) the nature, extent, and anticipated dates of

commencement and completion of the proposed relocation;

(3) the current and proposed locations of the

easement;

(4) the reason the easement is eligible for relocation

under Section 5.253;

(5) the reason the proposed relocation satisfies the

conditions for relocation under Section 5.254; and

(6) that the servient estate owner has made a

reasonable attempt to notify the holders of any public utility

easement, conservation easement, or negative easement on the

servient estate or dominant estate of the proposed relocation.

(d) At any time before the court renders a final order in an

action under Subsection (a), a person served under Subsection

(b)(1)(B), (C), or (D) may file a document, in recordable form, that

waives the person's rights to contest or obtain relief in

connection with the relocation or subordinates the person's

interests to the relocation. On filing of the document, the court

may order that the person is not required to answer or participate

further in the action.

Sec. 5.256. REQUIRED FINDINGS; ORDER. (a) The court may

not approve relocation of an easement under this subchapter unless

the servient estate owner:

(1) establishes that the easement is eligible for

relocation under Section 5.253; and

(2) satisfies the conditions for relocation under

Section 5.254.

(b) An order under this subchapter approving relocation of

an easement must:

(1) state that the order is issued in accordance with

this subchapter;

(2) recite the recording data of the instrument

creating the easement, if any, and any amendments;

(3) identify the immediately preceding location of the

easement;

(4) describe in a legally sufficient manner the new

location of the easement;

(5) describe mitigation required of the servient

estate owner during relocation;

(6) refer in detail to the plans and specifications of

improvements necessary for the easement holder to enter, use, and

enjoy the easement in the new location;

(7) specify conditions to be satisfied by the servient

estate owner to relocate the easement and construct improvements

necessary for the easement holder to enter, use, and enjoy the

easement in the new location;

(8) include a provision for payment by the servient

estate owner of expenses under Section 5.257;

(9) include a provision for compliance by the parties

with the obligation of good faith under Section 5.258; and

(10) instruct the servient estate owner to record an

affidavit, if required under Section 5.259(a), when the servient

estate owner substantially completes relocation.

(c) An order under Subsection (b) may include any other

provision consistent with this subchapter for the fair and

equitable relocation of the easement.

(d) Before a servient estate owner proceeds with relocation

of an easement under this subchapter, the owner must record, in the

real property records of each county where the servient estate is

located, a certified copy of the order under Subsection (b).

Sec. 5.257. EXPENSES OF RELOCATION. A servient estate

owner is responsible for reasonable expenses of relocation of an

easement under this subchapter, including the expense of:

(1) constructing improvements on the servient estate

or dominant estate in accordance with an order under Section 5.256;

(2) during the relocation, mitigating disruption in

the use and enjoyment of the easement by the easement holder or

another person entitled to use and enjoy the easement;

(3) obtaining a governmental approval or permit to

relocate the easement and construct necessary improvements;

(4) preparing and recording the certified copy

required by Section 5.256(d) and any other document required to be

recorded;

(5) any title work required to complete the relocation

or required by a party to the civil action as a result of the

relocation;

(6) applicable premiums for title insurance related to

the relocation;

(7) any expert necessary to review plans and

specifications for an improvement to be constructed in the

relocated easement or on the dominant estate and to confirm

compliance with the plans and specifications referred to in the

order under Section 5.256(b)(6);

(8) payment of any maintenance cost associated with

the relocated easement that is greater than the maintenance cost

associated with the easement before relocation; and

(9) obtaining any third-party consent required to

relocate the easement.

Sec. 5.258. DUTY TO ACT IN GOOD FAITH. After the court,

under Section 5.256, approves relocation of an easement and the

servient estate owner commences the relocation, the servient estate

owner, the easement holder, and other parties in the civil action

shall act in good faith to facilitate the relocation in compliance

with this subchapter.

Sec. 5.259. RELOCATION AFFIDAVIT. (a) If an order under

Section 5.256 requires the construction of an improvement as a

condition for relocation of an easement, relocation is

substantially complete, and the easement holder is able to enter,

use, and enjoy the easement in the new location, the servient estate

owner shall:

(1) record, in the real property records of each

county where the servient estate is located, an affidavit

certifying that the easement has been relocated; and

(2) send, by certified mail, a copy of the recorded

affidavit to the easement holder and parties to the civil action.

(b) Until an affidavit under Subsection (a) is recorded and

sent, the easement holder may enter, use, and enjoy the easement in

the current location, subject to the court's order under Section

5.256 approving relocation.

(c) If an order under Section 5.256 does not require an

improvement to be constructed as a condition of the relocation,

recording the order under Section 5.256(d) constitutes relocation.

Sec. 5.260. LIMITED EFFECT OF RELOCATION. (a) Relocation

of an easement under this subchapter:

(1) is not a new transfer or a new grant of an interest

in the servient estate or the dominant estate;

(2) is not a breach or default of, and does not

trigger, a due-on-sale clause or other transfer-restriction clause

under a security instrument, except as otherwise determined by a

court under law other than this subchapter;

(3) is not a breach or default of a lease, except as

otherwise determined by a court under law other than this

subchapter;

(4) is not a breach or default by the servient estate

owner of a recorded document affected by the relocation, except as

otherwise determined by a court under law other than this

subchapter;

(5) does not affect the priority of the easement with

respect to other recorded real property interests burdening the

area of the servient estate where the easement was located before

the relocation; and

(6) is not a fraudulent conveyance or voidable

transaction under law.

(b) This subchapter does not affect any other method of

relocating an easement permitted under law of this state other than

this subchapter.

Sec. 5.261. NON-WAIVER. The right of a servient estate

owner to relocate an easement under this subchapter may not be

waived, excluded, or restricted by agreement even if:

(1) the instrument creating the easement prohibits

relocation or contains a waiver, exclusion, or restriction of this

subchapter;

(2) the instrument creating the easement requires

consent of the easement holder to amend the terms of the easement;

or

(3) the location of the easement is fixed by the

instrument creating the easement, another agreement, previous

conduct, acquiescence, estoppel, or implication.

SECTION 2. Subchapter H, Chapter 5, Property Code, as added

by this Act, applies to an easement created before, on, or after the

effective date of this Act.

SECTION 3. This Act takes effect September 1, 2025.