Best Laid Plans: Relocation of a Right of Way During Development

Contributed by Senter Goldfarb & Rice, LLC

Before ground is ever broken on a new development, countless legal details including the execution and recording of deeds for rights-of-way and access roads are tended to and worried over. Despite these best laid plans, however, situations arise where circumstances and preferences dictate that rights-of-way be built on a location other than is provided for in the deed granting the easement.

This problem presents different considerations depending on whether it is the holder of the easement of the right-of-way (known as the “benefitted” or “dominant” estate) who wishes to relocate or the adjacent landowners (known as the “burdened” or “servient” estate). Depending on which party desires the relocation, the following issues should be considered.

NEGOTIATE

Whether the party wishing to relocate a right-of-way is an easement holder or the adjacent landowner, the first action should always be an attempt to negotiate the relocation. If a negotiation is successful, a new deed should be executed and recorded with the proper jurisdiction.

When negotiations breakdown, the available remedies will vary depending on whether the party wishing to relocate is the easement holder or the adjacent land owner.

ADJACENT LANDOWNER (“BURDENED ESTATE”) WISHES TO RELOCATE RIGHT OF WAY

  • An adjacent landowner can ask a court to declare a reasonable relocation of the right-of-way through a mechanism called a declaratory judgment action. Note that neither the Board of Directors for a metropolitan district nor the governing body of a municipality generally has the power to order a right-of-way be relocated. These governing bodies may require that an easement be entered into by the parties as part of the approval of a service plan or some other resolution. However, only a court can fix the location of the easement through a declaratory judgment action.
  • Read the deed carefully—if the location of the right-of-way is specifically described in metes and bounds, some jurisdictions will be reluctant to order a relocation even if the change is reasonable and makes most efficient use of the land. If the deed does not contain metes and bounds description, a declaratory action may be appropriate.

Declaratory Judgment Action:

  • The majority of states recognize that the competing uses between two interested owners should be accommodated, if possible, and outdated tenants of property law often do little to foster development and full use of the land.
  • The Restatement (Third) of Property (Servitudes) § 4.8 cmt. f (2000) provides: that unless expressly denied by the terms of an easement, … the owner of the burdened estate is entitled to make reasonable changes in the location or dimensions of an easement at the burdened owner’s expense, to permit normal use or development of the burdened estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.
  • Many jurisdictions, including Colorado, have cited this test with approval and appear to be moving toward a more flexible stance when the relocation of an easement or right-of-way does not damage the benefitted estate.

 

WHEN AN EASEMENT HOLDER (“BENEFITTED ESTATE”) WISHES TO RELOCATE RIGHT OF WAY

  • As is the case when a burdened estate wishes to change the location of a right-of-way, the best course of action when an easement holder wishes to change the location of a right-of-way is to re-negotiate the easement terms. If negotiations are unsuccessful, relocation by the easement holder through a declaratory judgment will likely be much more difficult.
  • As discussed above, the adjacent landowner likely has some flexibility to relocate an easement based on the most efficient use of both parties. However, this right is not reciprocal, and easement holders do not have the right to unilaterally change the location of a right-of-way, even if such a change would not damage the adjacent landowner’s rights.
  • Easement holders should keep in mind, however, that a right-of-way may be used for any purpose to which the right-of-way may at the time, or in the future, reasonably be devoted. This is so as long as the new or different use does not impose an additional burden on the burdened estate and where the deed does not otherwise limit the scope or purpose of the right-of-way.
  • Therefore, if needs of the easement holder can be met by change of use (i.e., an increase of traffic or traffic of vehicles rather than pedestrians) but made within the confines of the actual location of the easement, then those changes generally can be made without court intervention or re-negotiation of the deed.

 AVOID TRESPASS

Even though these additional negotiations may increase time and resources of the development plan, the expenditures will likely be small given the alternatives. Litigation will not only require additional time and expense, it will likely stay any further development until the matter is resolved. Damages resulting from litigation could include exemplary damages if the relocation of the right-of-way is undertaken knowingly or in bad faith. Additionally, in worst case scenarios, courts have ordered that improvements be removed and the land be returned to its original condition.

Generally, it is when negotiations break down that parties encounter more difficult problems. All parties should keep the above principles in mind and contact an attorney with specialized knowledge and experience in the law relating to special districts before they take any action to relocate an easement.

About Us

Senter Goldfarb & Rice is a civil litigation defense firm based in Denver, Colorado that provides premiere client representation in cases involving government entities including all manner of issues encountered by metropolitan districts and other special district entities across the Mountain west.

We are proud to have built a team of trial-ready, experienced, responsive and prepared attorneys who bring a big-picture, common-sense mentality to every case to provide effective and efficient legal representation for our clients. Please contact us at (303) 320-0509 or visit our website at www.sgrllc.com.

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