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.