08 LC 29
3121ER
House
Bill 1132
By:
Representatives Lindsey of the
54th,
Tumlin of the
38th,
Ashe of the
56th,
Teilhet of the
40th,
Willard of the
49th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 44 of the Official Code of Georgia Annotated, relating to property,
so as to enact the "Uniform Environmental Covenants Act"; to provide for a short
title; to define terms; to provide for the nature of rights and subordination of
interests; to provide for the contents of an environmental covenant; to provide
for validity and the effect on other instruments; to provide for the
relationship between environmental covenants and other land use laws; to provide
for notice of an environmental covenant; to provide for recording of
environmental covenant; to provide for duration of environmental covenant and
amendment by court action; to provide for amendment or termination of an
environmental covenant by consent; to provide for enforcement of environmental
covenants; to provide for a registry of environmental covenants and substitute
notice of environmental covenants; to provide for uniformity of application and
construction; to provide for interaction with federal law; to provide for
related matters; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
44 of the Official Code of Georgia Annotated, relating to property, is amended
by adding a new chapter to read as follows:
"CHAPTER
16
44-16-1.
This
chapter may be known as and may be cited as the 'Uniform Environmental Covenants
Act.'
44-16-2.
As
used in this chapter, the term:
(1)
'Activity and use limitations' means restrictions or obligations created under
this chapter with respect to real property.
(2)
'Agency' means the Environmental Protection Division of the Department of
Natural Resources or any other state or federal agency that determines or
approves the environmental response project pursuant to which the environmental
covenant is created.
(3)
'Common interest community' means a condominium, cooperative, or other real
property with respect to which a person, by virtue of the person’s
ownership of a parcel of real property, is obligated to pay property taxes or
insurance premiums, or for maintenance, or improvement of other real property
described in a recorded covenant that creates the common interest
community.
(4)
'Environmental covenant' means a servitude arising under an environmental
response project that imposes activity and use limitations.
(5)
'Environmental response project' means a plan or work performed for
environmental remediation of real property and conducted:
(A)
Under a federal or state program governing environmental remediation of real
property;
(B)
Incident to closure of a solid or hazardous waste management unit, if the
closure is conducted with approval of an agency; or
(C)
Under a state voluntary clean-up program.
(6)
'Holder' means the grantee of an environmental covenant as specified in
subsection (a) of Code Section 44-16-3.
(7)
'Person' means an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, public
corporation, government, political subdivision, agency, or instrumentality, or
any other legal or commercial entity.
(8)
'Record' 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.
44-16-3.
(a)
Any person, including a person that owns an interest in the real property, the
agency, or a municipality or other unit of local government, may be a holder. An
environmental covenant may identify more than one holder. The interest of a
holder is an interest in real property.
(b)
A right of an agency under this chapter or under an environmental covenant,
other than a right as a holder, is not an interest in real
property.
(c)
An agency is bound by any obligation it assumes in an environmental covenant,
but an agency does not assume obligations merely by signing an environmental
covenant. Any other person that signs an environmental covenant is bound by the
obligations the person assumes in the covenant, but signing the covenant does
not change obligations, rights, or protections granted or imposed under law
other than as set forth in this chapter except as provided in the
covenant.
(d)
The following rules apply to interests in real property in existence at the time
an environmental covenant is created or amended:
(1)
An interest that has priority under other law is not affected by an
environmental covenant unless the person that owns the interest subordinates
that interest to the covenant;
(2)
The provisions of this chapter shall not require a person that owns a prior
interest to subordinate that interest to an environmental covenant or to agree
to be bound by the covenant;
(3)
A subordination agreement may be contained in an environmental covenant covering
real property or in a separate record. If the environmental covenant covers
commonly owned property in a common interest community, the record may be signed
by any person authorized by the governing board of the owners´ association;
and
(4)
An agreement by a person to subordinate a prior interest to an environmental
covenant affects the priority of that person´s interest but does not by
itself impose any affirmative obligation on the person with respect to the
environmental covenant.
44-16-4.
(a)
An environmental covenant shall:
(1)
State that the instrument is an environmental covenant executed pursuant to this
chapter;
(2)
Contain a legally sufficient description of the real property subject to the
covenant;
(3)
Describe the activity and use limitations on the real property;
(4)
Identify every holder;
(5)
Be signed by the agency, every holder, and, unless waived by the agency, every
owner of the fee simple of the real property subject to the covenant;
and
(6)
Identify the name and location of any administrative record for the
environmental response project reflected in the environmental
covenant.
(b)
In addition to the information required by subsection (a) of this Code section,
an environmental covenant may contain other information, restrictions, and
requirements agreed to by the persons who signed it, including any:
(1)
Requirements for notice following transfer of a specified interest in, or
concerning proposed changes in use of, applications for building permits for, or
proposals for any site work affecting the contamination on, the property subject
to the covenant;
(2)
Requirements for periodic reporting describing compliance with the
covenant;
(3)
Rights of access to the property granted in connection with implementation or
enforcement of the covenant;
(4)
A brief narrative description of the contamination and remedy, including the
contaminants of concern, the pathways of exposure, limits on exposure, and the
location and extent of the contamination;
(5)
Limitation on amendment or termination of the covenant in addition to those
contained in Code Sections 44-16-9 and 44-16-10; and
(6)
Rights of the holder in addition to the right to enforce the covenant pursuant
to Code Section 44-16-11.
(c)
In addition to other conditions for its approval of an environmental covenant,
the agency may require those persons specified by the agency who have interests
in the real property to sign the covenant.
44-16-5.
(a)
An environmental covenant that complies with this chapter runs with the
land.
(b)
An environmental covenant that is otherwise effective is valid and enforceable
even if:
(1)
It is not appurtenant to an interest in real property;
(2)
It can be or has been assigned to a person other than the original
holder;
(3)
It is not of a character that has been recognized traditionally at common
law;
(4)
It imposes a negative burden;
(5)
It imposes an affirmative obligation on a person having an interest in the real
property or on the holder;
(6)
The benefit or burden does not touch or concern real property;
(7)
There is no privity of estate or contract;
(8)
The holder dies, ceases to exist, resigns, or is replaced; or
(9)
The owner of an interest subject to the environmental covenant and the holder
are the same person.
(c)
An instrument that creates restrictions or obligations with respect to real
property that would qualify as activity and use limitations except for the fact
that the instrument was recorded before the effective date of this chapter shall
not be invalid or unenforceable because of any of the limitations on enforcement
of interests described in subsection (b) of this Code section or because it was
identified as an easement, servitude, deed restriction, or other interest. This
chapter shall not apply in any other respect to such an instrument.
(d)
This chapter shall not invalidate or render unenforceable any interest, whether
designated as an environmental covenant or other interest, that is otherwise
enforceable under the law of this state.
44-16-6.
This
chapter shall not authorize a use of real property that is otherwise prohibited
by zoning, by general law, or by a recorded instrument that has priority over
the environmental covenant. An environmental covenant may prohibit or restrict
uses of real property which are authorized by zoning or by general
law.
44-16-7.
(a)
A copy of an environmental covenant shall be provided by the persons and in the
manner required by the agency to:
(1)
Each person that signed the covenant;
(2)
Each person holding a recorded interest in the real property subject to the
covenant;
(3)
Each person in possession of the real property subject to the
covenant;
(4)
Each municipality or other unit of local government in which real property
subject to the covenant is located; and
(5)
Any other person the agency requires.
(b)
The validity of an environmental covenant shall not be affected by failure to
provide a copy of the covenant as required under this Code section.
44-16-8.
(a)
An environmental covenant and any amendment or termination of the covenant shall
be recorded in every county in which any portion of the real property subject to
the covenant is located. For purposes of indexing, a holder shall be treated as
a grantee.
(b)
Except as otherwise provided in subsection (c) of Code Section 44-16-9, an
environmental covenant is subject to the laws of this state governing recording
and priority of interests in real property.
44-16-9.
(a)
An environmental covenant is perpetual unless it is:
(1)
By its terms limited to a specific duration or terminated by the occurrence of a
specific event;
(2)
Terminated by consent pursuant to Code Section 44-16-10;
(3)
Terminated pursuant to subsection (b) of this Code section;
(4)
Terminated by foreclosure of an interest that has priority over the
environmental covenant; or
(5)
Terminated or modified in an eminent domain proceeding, but only
if:
(A)
The agency that signed the covenant is a party to the proceeding;
(B)
All persons identified in subsections (a) and (b) of Code Section 44-16-10 are
given notice of the pendency of the proceeding; and
(C)
The court determines, after hearing, that the termination or modification will
not adversely affect human health or the environment.
(b)
If the agency that signed an environmental covenant has determined that the
intended benefits of the covenant can no longer be realized, a court, under the
doctrine of changed circumstances, in an action in which all persons identified
in subsection (a) and (b) of Code Section 44-16-10 have been given notice, may
terminate the covenant or reduce its burden on the real property subject to the
covenant. The agency´s determination or its failure to make a determination
upon request is subject to review pursuant to Article 1 of Chapter 13 of Title
50, the 'Georgia Administrative Procedure Act.'
(c)
Except as otherwise provided in subsections (a) and (b) of this Code section, an
environmental covenant may not be extinguished, limited, or impaired through
issuance of a tax deed, foreclosure of a tax lien, or application of the
doctrine of adverse possession, prescription, abandonment, waiver, lack of
enforcement, or acquiescence, or a similar doctrine.
(d)
An environmental covenant may not be extinguished, limited, or impaired by
application of Chapter 2 of this title and Code Section 44-5-168.
44-16-10.
(a)
An environmental covenant may be amended or terminated by consent only if the
amendment or termination is signed by:
(1)
The agency;
(2)
Unless waived by the agency, the current owner of the fee simple of the real
property subject to the covenant;
(3)
Each person that originally signed the covenant, unless the person waived in a
signed record the right to consent or a court finds that the person no longer
exists or cannot be located or identified with the exercise of reasonable
diligence; and
(4)
Except as otherwise provided in paragraph (2) of subsection (d) of this Code
section, the holder.
(b)
If an interest in real property is subject to an environmental covenant, the
interest shall not be affected by an amendment of the covenant unless the
current owner of the interest consents to the amendment or has waived in a
signed record the right to consent to amendments.
(c)
Except for an assignment undertaken pursuant to a governmental reorganization,
assignment of an environmental covenant to a new holder shall be an
amendment.
(d)
Except as otherwise provided in an environmental covenant:
(1)
A holder may not assign its interest without consent of the other parties;
and
(2)
A holder may be removed and replaced by agreement of the other parties specified
in subsection (a) of this Code section.
(e)
A court of competent jurisdiction may fill a vacancy in the position of
holder.
44-16-11.
(a)
A civil action for injunctive or other equitable relief for violation of an
environmental covenant may be maintained by:
(1)
A party to the covenant;
(2)
The agency;
(3)
Any person to whom the covenant expressly grants power to enforce;
(4)
A person whose interest in the real property or whose collateral or liability
may be affected by the alleged violation of the covenant; or
(5)
A municipality or other unit of local government in which the real property
subject to the covenant is located.
(b)
This chapter shall not limit the regulatory authority of the agency under law
other than this chapter with respect to an environmental response
project.
(c)
A person shall not responsible for or subject to liability for environmental
remediation solely because such person has the right to enforce an environmental
covenant.
44-16-12.
(a)
The agency shall establish and maintain a registry that contains all
environmental covenants and any amendment or termination of such covenants. The
registry may also contain any other information concerning environmental
covenants and the real property subject to them which the agency considers
appropriate. The registry is a public record for purposes of Article 4 of
Chapter 18 of Title 50.
(b)
After an environmental covenant or an amendment or termination of a covenant is
filed in the registry established and maintained pursuant to subsection (a) of
this Code section, a notice of the covenant, amendment, or termination that
complies with this Code section may be recorded in the land records in lieu of
recording the entire covenant. Any such notice shall contain:
(1)
A legally sufficient description and any available street address of the real
property subject to the covenant;
(2)
The name and address of the owner of the fee simple interest in the real
property, the agency, and the holder if other than the agency;
(3)
A statement that the covenant, amendment, or termination is available in a
registry at the agency, which discloses the method of any electronic access;
and
(4)
A statement that the notice is notification of an environmental covenant
executed pursuant to this chapter.
(c)
A statement in substantially the following form, executed with the same
formalities as a deed in this state, shall satisfy the requirements of
subsection (b) of this Code section:
'1.
This notice is filed in the land records of the [political subdivision] of
[insert name of jurisdiction in which the real property is located] pursuant to,
O.C.G.A Section 44-16-12.
2.
This notice and the covenant, amendment, or termination to which it refers may
impose significant obligations with respect to the property described
below.
3.
A legal description of the property is attached as Exhibit A to this notice. The
address of the property that is subject to the environmental covenant is:
[insert address of property] [not available].
4.
The name and address of the owner of the fee simple interest in the real
property on the date of this notice is [insert name of current owner of the
property and the owner’s current address as shown on the tax records of
the jurisdiction in which the property is located].
5.
The environmental covenant, amendment, or termination was signed by [insert name
and address of the agency].
6.
The environmental covenant, amendment, or termination was filed in the registry
on [insert date of filing].
7.
The full text of the covenant, amendment, or termination and any other
information required by the agency is on file and available for inspection and
copying in the registry maintained for that purpose by the Environmental
Protection Division of the Department of Natural Resources at 2 Martin Luther
King Jr. Drive, Suite 1152, East Tower, Atlanta, GA 30334. The covenant,
amendment, or termination may be found electronically at
www.gaepd.org.'
44-16-13.
This
chapter modifies, limits, or supersedes the federal Electronic Signatures in
Global and National Commerce Act (15 U.S.C. Section 7001 et seq.) but shall not
modify, limit, or supersede Section 101 of such Act (15 U.S.C. Section 7001(a))
or authorize electronic delivery of any of the notices described in Section 103
of such Act (15 U.S.C. Section 7003(b))."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.