Lovett on Easement Relocation

John Lovett (Loyola University New Orleans - School of Law) has posted A Bend in the Road: Easement Relocation and Pliability in the New Restatement (Third) of Property: Servitudes on SSRN.  Here's the abstract:

Section 4.8(3) of the Restatement (Third) of Property: Servitudes adopts a seemingly radical new approach to the question of whether an easement may be relocated by the servient estate owner without the easement holder’s consent. Although the traditional common law rule prevented the unilateral relocation of an easement by the servient estate owner, the new Restatement rule allows such a relocation for purposes of developing the servient estate as long as the relocated easement continues to serve the holder’s needs and is not unduly burdensome. This new approach, which was borrowed whole cloth from the civil law rule long used in Louisiana and Europe, has recently been adopted by major common law jurisdictions such as New York, Massachusetts and Colorado, at the same time that it has been subject to stinging criticism from American property law scholars.

This article situates the debate surrounding section 4.8(3) in the now long simmering but still expanding discourse over property and liability rules as entitlement protection mechanisms. In particular, this article argues that Abraham Bell and Gideon Parchomovsky’s vision of pliability rules, a dynamic form of liability rules that respond to some of the criticisms of liability rules and yet can provide flexibility when the competing interests of multiple parties and constituencies need to be balanced, can be a useful lens for understanding and ultimately refining section 4.8(3). Ultimately, this article shows that although section 4.8(3)’s shift from a property to a liability rule approach in the context of easement relocation carries risks of increasing uncertainty, discouraging investment and perhaps fomenting market avoidance, it is nevertheless a productive change in the law because it helps courts and parties understand easement and servitudes not as inflexible property rights but as evolving relationships between parties with concurrent interests in the same land, one that is quasi-possessory and the other fully possessory. The article also suggests four specific ways in which section 4.8(3) could be refined in the direction of a more nuanced and refined pliability rule consistent with the vision of Bell and Parchomovksy to respond to important criticisms leveled against it and liability rules in general. In the end, a refined section 4.8(3) can itself become a prime example of the value of pliability rule modeling as a technique for entitlement protection design.

Ben Barros

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