2005 Nevada Revised Statutes - Chapter 445D — Environmental Covenants (Uniform Act)

CHAPTER 445D - ENVIRONMENTAL COVENANTS(UNIFORM ACT)

GENERAL PROVISIONS

NRS 445D.010 Shorttitle.

NRS 445D.020 Definitions.

NRS 445D.030 Activityand use limitations defined.

NRS 445D.040 Agencydefined.

NRS 445D.050 Common-interestcommunity defined.

NRS 445D.060 Environmentalcovenant defined.

NRS 445D.070 Environmentalresponse project defined.

NRS 445D.080 Holderdefined.

NRS 445D.090 Persondefined.

NRS 445D.100 Recorddefined.

NRS 445D.110 Statedefined.

ENVIRONMENTAL COVENANTS

NRS 445D.120 Natureof rights; subordination of interests.

NRS 445D.130 Contents.

NRS 445D.140 Validity;effect on other instruments.

NRS 445D.150 Relationshipto other land-use law.

NRS 445D.160 Notice.

NRS 445D.170 Recording.

NRS 445D.180 Duration;amendment by court action.

NRS 445D.190 Amendmentor termination by consent.

MISCELLANEOUS PROVISIONS

NRS 445D.200 Enforcement.

NRS 445D.210 Uniformityof application and construction.

NRS 445D.220 Relationto Electronic Signatures in Global and National Commerce Act.

_________

GENERAL PROVISIONS

NRS 445D.010 Shorttitle. This chapter may be cited as theUniform Environmental Covenants Act.

(Added to NRS by 2005, 1362)

NRS 445D.020 Definitions. As used in this chapter, unless the context otherwiserequires, the words and terms defined in NRS445D.030 to 445D.110, inclusive,have the meanings ascribed to them in those sections.

(Added to NRS by 2005, 1362)

NRS 445D.030 Activityand use limitations defined. Activity anduse limitations means restrictions or obligations created under this chapterwith respect to real property.

(Added to NRS by 2005, 1362)

NRS 445D.040 Agencydefined. Agency means:

1. The State Department of Conservation and NaturalResources;

2. The Division of Environmental Protection of theState Department of Conservation and Natural Resources; or

3. The United States Environmental Protection Agency.

(Added to NRS by 2005, 1362)

NRS 445D.050 Common-interestcommunity defined. Common-interestcommunity means a condominium, cooperative or other real property with respectto which a person, by virtue of the persons ownership of a parcel of realproperty, is obligated to pay property taxes or insurance premiums, or formaintenance or improvement of other real property described in a recordedcovenant that creates the common-interest community.

(Added to NRS by 2005, 1362)

NRS 445D.060 Environmentalcovenant defined. Environmental covenantmeans a servitude arising under an environmental response project that imposesactivity and use limitations.

(Added to NRS by 2005, 1362)

NRS 445D.070 Environmentalresponse project defined. Environmentalresponse project means a plan or work performed for environmental remediationof real property and conducted:

1. Under a federal or state program governingenvironmental remediation of real property;

2. Incident to closure of a solid or hazardous wastemanagement unit, if the closure is conducted with approval of an agency; or

3. Under a state voluntary cleanup program authorizedby the laws of this State.

(Added to NRS by 2005, 1362)

NRS 445D.080 Holderdefined. Holder means the grantee of an environmentalcovenant as specified in subsection 1 of NRS445D.120.

(Added to NRS by 2005, 1362)

NRS 445D.090 Persondefined. Person means any natural person, corporation,business trust, estate, trust, partnership, limited-liability company, association,joint venture, public corporation, government, governmental subdivision, agencyor instrumentality, or any other legal or commercial entity.

(Added to NRS by 2005, 1362)

NRS 445D.100 Recorddefined. Record, used as a noun, means informationwhich is inscribed on a tangible medium or which is stored in an electronic orother medium and is retrievable in perceivable form.

(Added to NRS by 2005, 1363)

NRS 445D.110 Statedefined. State means the State of Nevada.

(Added to NRS by 2005, 1363)

ENVIRONMENTAL COVENANTS

NRS 445D.120 Natureof rights; subordination of interests.

1. Any person, including a person who owns an interestin the real property, the agency or a municipality or other unit of localgovernment, may be a holder. An environmental covenant may identify more thanone holder. The interest of a holder is an interest in real property.

2. A right of an agency under this chapter or under anenvironmental covenant, other than a right as a holder, is not an interest inreal property.

3. An agency is bound by any obligation it assumes inan environmental covenant, but an agency does not assume obligations merely bysigning an environmental covenant. Any other person who signs an environmentalcovenant is bound by the obligations the person assumes in the covenant, butsigning the covenant does not change obligations, rights or protections grantedor imposed under law other than this chapter except as otherwise provided inthe covenant.

4. The following rules apply to interests in realproperty in existence at the time an environmental covenant is created oramended:

(a) An interest that has priority under any other lawis not affected by an environmental covenant unless the person who owns theinterest subordinates that interest to the covenant.

(b) This chapter does not require a person who owns aprior interest to subordinate that interest to an environmental covenant or toagree to be bound by the covenant.

(c) A subordination agreement may be contained in anenvironmental covenant covering real property or in a separate record. If theenvironmental covenant covers commonly owned property in a common-interestcommunity, the record may be signed by any person authorized by the executiveboard of the unit-owners association.

(d) An agreement by a person to subordinate a priorinterest to an environmental covenant affects the priority of that personsinterest, but does not by itself impose any affirmative obligation on theperson with respect to the environmental covenant.

(Added to NRS by 2005, 1363)

NRS 445D.130 Contents.

1. An environmental covenant must:

(a) State that the instrument is an environmentalcovenant executed pursuant to this chapter;

(b) Contain a legally sufficient description of thereal property subject to the covenant;

(c) Describe the activity and use limitations on thereal property;

(d) Identify every holder;

(e) Be signed by the agency, every holder and, unlesswaived by the agency, every owner of the fee simple of the real propertysubject to the covenant; and

(f) Identify the name and location of anyadministrative record for the environmental response project reflected in theenvironmental covenant.

2. In addition to the information required bysubsection 1, an environmental covenant may contain other information,restrictions and requirements agreed to by the persons who signed it,including:

(a) Any requirements for notice following transfer of aspecified interest in, or concerning proposed changes in use of, applicationsfor building permits for, or proposals for any site work affecting thecontamination on, the property subject to the covenant;

(b) Any requirements for periodic reporting describingcompliance with the covenant;

(c) Any rights of access to the property granted inconnection with implementation or enforcement of the covenant;

(d) A brief narrative description of the contaminationand remedy, including the contaminants of concern, pathways of exposure, limitson exposure, and location and extent of the contamination;

(e) Any limitation on amendment or termination of thecovenant in addition to those contained in NRS445D.180 and 445D.190; and

(f) Any rights of the holder in addition to its rightto enforce the covenant pursuant to NRS445D.200.

3. In addition to other conditions for its approval ofan environmental covenant, the agency may require those persons specified bythe agency who have interests in the real property to sign the covenant.

(Added to NRS by 2005, 1363)

NRS 445D.140 Validity;effect on other instruments.

1. An environmental covenant that complies with thischapter runs with the land.

2. An environmental covenant that is otherwise effectiveis valid and enforceable even if:

(a) It is not appurtenant to an interest in realproperty;

(b) It can be or has been assigned to a person otherthan the original holder;

(c) It is not of a character that has been recognizedtraditionally at common law;

(d) It imposes a negative burden;

(e) It imposes an affirmative obligation on a personhaving an interest in the real property or on the holder;

(f) The benefit or burden does not touch or concernreal property;

(g) There is no privity of estate or contract;

(h) The holder dies, ceases to exist, resigns or isreplaced; or

(i) The owner of an interest subject to theenvironmental covenant and the holder are the same person.

3. An instrument that creates restrictions orobligations with respect to real property that would qualify as activity anduse limitations, except for the fact that the instrument was recorded beforeOctober 1, 2005, is not invalid or unenforceable because of any of thelimitations on enforcement of interests described in subsection 2 or because itwas identified as an easement, servitude, deed restriction or other interest.This chapter does not apply in any other respect to such an instrument.

4. This chapter does not invalidate or renderunenforceable any interest, whether designated as an environmental covenant orother interest, that is otherwise enforceable under the laws of this State.

(Added to NRS by 2005, 1364)

NRS 445D.150 Relationshipto other land-use law. This chapter does notauthorize a use of real property that is otherwise prohibited by zoning, by lawother than this chapter regulating use of real property or by a recordedinstrument that has priority over the environmental covenant. An environmentalcovenant may prohibit or restrict uses of real property which are authorized byzoning or by law other than this chapter.

(Added to NRS by 2005, 1364)

NRS 445D.160 Notice.

1. A copy of an environmental covenant must beprovided by the persons and in the manner required by the agency to:

(a) Each person who signed the covenant;

(b) Each person holding a recorded interest in the realproperty subject to the covenant;

(c) Each person in possession of the real propertysubject to the covenant;

(d) Each municipality or other unit of local governmentin which real property subject to the covenant is located and any localplanning commission whose territorial jurisdiction includes or is immediatelyadjacent to the real property subject to the covenant; and

(e) Any other person the agency requires.

2. The validity of a covenant is not affected byfailure to provide a copy of the covenant as required under this section.

(Added to NRS by 2005, 1365)

NRS 445D.170 Recording.

1. An environmental covenant and any amendment ortermination of the covenant must be recorded in every county in which anyportion of the real property subject to the covenant is located. For purposesof indexing, a holder must be treated as a grantee.

2. Except as otherwise provided in subsection 3 of NRS 445D.180, an environmental covenantis subject to the laws of this State governing recording and priority ofinterests in real property.

(Added to NRS by 2005, 1365)

NRS 445D.180 Duration;amendment by court action.

1. An environmental covenant is perpetual unless itis:

(a) By its terms limited to a specific duration orterminated by the occurrence of a specific event;

(b) Terminated by consent pursuant to NRS 445D.190;

(c) Terminated pursuant to subsection 2;

(d) Terminated by foreclosure of an interest that haspriority over the environmental covenant; or

(e) Terminated or modified in an eminent domainproceeding, but only if:

(1) The agency that signed the covenant is aparty to the proceeding;

(2) All persons identified in subsections 1 and2 of NRS 445D.190 are given notice ofthe pendency of the proceeding; and

(3) The court determines, after hearing, thatthe termination or modification will not adversely affect human health or theenvironment.

2. If the agency that signed an environmental covenanthas determined that the intended benefits of the covenant can no longer berealized, a court, under the doctrine of changed circumstances, in an action inwhich all persons identified in subsections 1 and 2 of NRS 445D.190 have been given notice, mayterminate the covenant or reduce its burden on the real property subject to thecovenant. The agencys determination or its failure to make a determinationupon request is subject to judicial review pursuant to NRS 233B.130.

3. Except as otherwise provided in subsections 1 and2, an environmental covenant may not be extinguished, limited or impairedthrough issuance of a tax deed, foreclosure of a tax lien or application of thedoctrine of adverse possession, prescription, abandonment, waiver, lack ofenforcement or acquiescence, or a similar doctrine.

4. An environmental covenant may not be extinguished,limited or impaired by application of any laws of this State relating tomarketable title or dormant mineral interests.

(Added to NRS by 2005, 1365)

NRS 445D.190 Amendmentor termination by consent.

1. An environmental covenant may be amended orterminated by consent only if the amendment or termination is signed by:

(a) The agency;

(b) Unless waived by the agency, the current owner ofthe fee simple of the real property subject to the covenant;

(c) Each person who originally signed the covenant,unless the person waived in a signed record the right to consent or a courtfinds that the person no longer exists or cannot be located or identified withthe exercise of reasonable diligence; and

(d) Except as otherwise provided in paragraph (b) ofsubsection 4, the holder.

2. If an interest in real property is subject to anenvironmental covenant, the interest is not affected by an amendment of thecovenant unless the current owner of the interest consents to the amendment orhas waived in a signed record the right to consent to amendments.

3. Except for an assignment undertaken pursuant to agovernmental reorganization, the assignment of an environmental covenant to anew holder is an amendment.

4. Except as otherwise provided in an environmentalcovenant:

(a) A holder may not assign its interest without theconsent of the other parties; and

(b) A holder may be removed and replaced by agreementof the other parties specified in subsection 1.

5. A court of competent jurisdiction may fill avacancy in the position of holder.

(Added to NRS by 2005, 1366)

MISCELLANEOUS PROVISIONS

NRS 445D.200 Enforcement.

1. A civil action for injunctive or other equitablerelief for the violation of an environmental covenant may be maintained by:

(a) A party to the covenant;

(b) The agency or, if it is not the agency, the StateDepartment of Conservation and Natural Resources or the Division ofEnvironmental Protection of that Department;

(c) Any person to whom the covenant expressly grantspower to enforce;

(d) A person whose interest in the real property orwhose collateral or liability may be affected by the alleged violation of thecovenant; or

(e) A municipality or other unit of local government inwhich the real property subject to the covenant is located.

2. This chapter does not limit the regulatoryauthority of the agency, or the State Environmental Commission, the StateDepartment of Conservation and Natural Resources or the Division ofEnvironmental Protection of that Department, under law other than this chapterwith respect to an environmental response project.

3. A person is not responsible for or subject toliability for environmental remediation solely because it has the right toenforce an environmental covenant.

(Added to NRS by 2005, 1366)

NRS 445D.210 Uniformityof application and construction. In applyingand construing this chapter, consideration must be given to the need to promoteuniformity of the law with respect to its subject matter among states thatenact it.

(Added to NRS by 2005, 1366)

NRS 445D.220 Relationto Electronic Signatures in Global and National Commerce Act. This chapter modifies, limits or supersedes the federalElectronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 etseq., but does not modify, limit or supersede section 101 of that Act, 15U.S.C. 7001(a), or authorize electronic delivery of any of the noticesdescribed in section 103 of that Act, 15 U.S.C. 7003(b).

(Added to NRS by 2005, 1366)

 

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