SB1009 - Relating to the adoption of the Uniform Easement Relocation Act.

  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.   &# [Text truncated for display. 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