[Rev. 11/21/2013 11:45:03
AM--2013]
CHAPTER 445D - ENVIRONMENTAL COVENANTS
(UNIFORM ACT)
GENERAL PROVISIONS
NRS 445D.010 Short
title.
NRS 445D.020 Definitions.
NRS 445D.030 “Activity
and use limitations” defined.
NRS 445D.040 “Agency”
defined.
NRS 445D.050 “Common-interest
community” defined.
NRS 445D.060 “Environmental
covenant” defined.
NRS 445D.070 “Environmental
response project” defined.
NRS 445D.080 “Holder”
defined.
NRS 445D.090 “Person”
defined.
NRS 445D.100 “Record”
defined.
NRS 445D.110 “State”
defined.
ENVIRONMENTAL COVENANTS
NRS 445D.120 Nature
of rights; subordination of interests.
NRS 445D.130 Contents.
NRS 445D.140 Validity;
effect on other instruments.
NRS 445D.150 Relationship
to other land-use law.
NRS 445D.160 Notice.
NRS 445D.170 Recording.
NRS 445D.180 Duration;
amendment by court action.
NRS 445D.190 Amendment
or termination by consent.
MISCELLANEOUS PROVISIONS
NRS 445D.200 Enforcement.
NRS 445D.210 Uniformity
of application and construction.
NRS 445D.220 Relation
to Electronic Signatures in Global and National Commerce Act.
_________
GENERAL PROVISIONS
NRS 445D.010 Short title. This
chapter may be cited as the Uniform Environmental Covenants Act.
(Added to NRS by 2005, 1362)
NRS 445D.020 Definitions. As
used in this chapter, unless the context otherwise requires, the words and
terms defined in NRS 445D.030 to 445D.110, inclusive, have the meanings ascribed to
them in those sections.
(Added to NRS by 2005, 1362)
NRS 445D.030 “Activity and use limitations” defined. “Activity
and use limitations” means restrictions or obligations created under this
chapter with respect to real property.
(Added to NRS by 2005, 1362)
NRS 445D.040 “Agency” defined. “Agency”
means:
1. The State Department of Conservation
and Natural Resources;
2. The Division of Environmental
Protection of the State Department of Conservation and Natural Resources; or
3. The United States Environmental
Protection Agency.
(Added to NRS by 2005, 1362)
NRS 445D.050 “Common-interest community” defined. “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.
(Added to NRS by 2005, 1362)
NRS 445D.060 “Environmental covenant” defined. “Environmental
covenant” means a servitude arising under an environmental response project
that imposes activity and use limitations.
(Added to NRS by 2005, 1362)
NRS 445D.070 “Environmental response project” defined. “Environmental response project” means a plan
or work performed for environmental remediation of real property and conducted:
1. Under a federal or state program
governing environmental remediation of real property;
2. Incident to closure of a solid or
hazardous waste management unit, if the closure is conducted with approval of
an agency; or
3. Under a state voluntary cleanup program
authorized by the laws of this State.
(Added to NRS by 2005, 1362)
NRS 445D.080 “Holder” defined. “Holder”
means the grantee of an environmental covenant as specified in subsection 1 of NRS 445D.120.
(Added to NRS by 2005, 1362)
NRS 445D.090 “Person” defined. “Person”
means any natural person, corporation, business trust, estate, trust,
partnership, limited-liability company, association, joint venture, public
corporation, government, governmental subdivision, agency or instrumentality,
or any other legal or commercial entity.
(Added to NRS by 2005, 1362)
NRS 445D.100 “Record” defined. “Record,”
used as a noun, means information which is inscribed on a tangible medium or
which is stored in an electronic or other medium and is retrievable in
perceivable form.
(Added to NRS by 2005, 1363)
NRS 445D.110 “State” defined. “State”
means the State of Nevada.
(Added to NRS by 2005, 1363)
ENVIRONMENTAL COVENANTS
NRS 445D.120 Nature of rights; subordination of interests.
1. Any person, including a person who 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.
2. 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.
3. 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 who 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 this chapter except as
otherwise provided in the covenant.
4. The following rules apply to interests
in real property in existence at the time an environmental covenant is created
or amended:
(a) An interest that has priority under any other
law is not affected by an environmental covenant unless the person who owns the
interest subordinates that interest to the covenant.
(b) This chapter does not require a person who
owns a prior interest to subordinate that interest to an environmental covenant
or to agree to be bound by the covenant.
(c) 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 executive
board of the unit-owners’ association.
(d) 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.
(Added to NRS by 2005, 1363)
NRS 445D.130 Contents.
1. An environmental covenant must:
(a) State that the instrument is an environmental
covenant executed pursuant to this chapter;
(b) Contain a legally sufficient description of
the real property subject to the covenant;
(c) Describe the activity and use limitations on
the real property;
(d) Identify every holder;
(e) 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
(f) Identify the name and location of any
administrative record for the environmental response project reflected in the
environmental covenant.
2. In addition to the information required
by subsection 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 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;
(b) Any requirements for periodic reporting
describing compliance with the covenant;
(c) Any rights of access to the property granted
in connection with implementation or enforcement of the covenant;
(d) A brief narrative description of the
contamination and remedy, including the contaminants of concern, pathways of
exposure, limits on exposure, and location and extent of the contamination;
(e) Any limitation on amendment or termination of
the covenant in addition to those contained in NRS
445D.180 and 445D.190; and
(f) Any rights of the holder in addition to its
right to enforce the covenant pursuant to NRS 445D.200.
3. 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.
(Added to NRS by 2005, 1363)
NRS 445D.140 Validity; effect on other instruments.
1. An environmental covenant that complies
with this chapter runs with the land.
2. An environmental covenant that is
otherwise effective is valid and enforceable even if:
(a) It is not appurtenant to an interest in real
property;
(b) It can be or has been assigned to a person
other than the original holder;
(c) It is not of a character that has been
recognized traditionally at common law;
(d) It imposes a negative burden;
(e) It imposes an affirmative obligation on a
person having an interest in the real property or on the holder;
(f) The benefit or burden does not touch or
concern real property;
(g) There is no privity of estate or contract;
(h) The holder dies, ceases to exist, resigns or
is replaced; or
(i) The owner of an interest subject to the
environmental covenant and the holder are the same person.
3. 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
October 1, 2005, is not invalid or unenforceable because of any of the
limitations on enforcement of interests described in subsection 2 or because it
was 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
render unenforceable any interest, whether designated as an environmental
covenant or other interest, that is otherwise enforceable under the laws of
this State.
(Added to NRS by 2005, 1364)
NRS 445D.150 Relationship to other land-use law. This
chapter does not authorize a use of real property that is otherwise prohibited
by zoning, by law other than this chapter regulating use of real property 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 law other than this chapter.
(Added to NRS by 2005, 1364)
NRS 445D.160 Notice.
1. A copy of an environmental covenant
must be provided 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 real property subject to the covenant;
(c) Each person in possession of the real
property subject to the covenant;
(d) Each municipality or other unit of local
government in which real property subject to the covenant is located and any
local planning commission whose territorial jurisdiction includes or is
immediately adjacent 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 by failure 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 or termination of the covenant must 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 must be treated as a grantee.
2. Except as otherwise provided in
subsection 3 of NRS 445D.180, an environmental
covenant is subject to the laws of this State governing recording and priority
of interests in real property.
(Added to NRS by 2005, 1365)
NRS 445D.180 Duration; amendment by court action.
1. An environmental covenant is perpetual
unless it is:
(a) By its terms limited to a specific duration
or terminated 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
has priority over the environmental covenant; or
(e) Terminated or modified in an eminent domain
proceeding, but only if:
(1) The agency that signed the covenant is
a party to the proceeding;
(2) All persons identified in subsections
1 and 2 of NRS 445D.190 are given notice of the
pendency of the proceeding; and
(3) The court determines, after hearing,
that the termination or modification will not adversely affect human health or
the environment.
2. 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 subsections 1
and 2 of NRS 445D.190 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 judicial review pursuant to NRS 233B.130.
3. Except as otherwise provided in
subsections 1 and 2, 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.
4. An environmental covenant may not be
extinguished, limited or impaired by application of any laws of this State
relating to marketable title or dormant mineral interests.
(Added to NRS by 2005, 1365)
NRS 445D.190 Amendment or termination by consent.
1. An environmental covenant may be
amended or terminated by consent only if the amendment or termination is signed
by:
(a) The agency;
(b) Unless waived by the agency, the current
owner of the 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
court finds that the person no longer exists or cannot be located or identified
with the exercise of reasonable diligence; and
(d) Except as otherwise provided in paragraph (b)
of subsection 4, the holder.
2. If an interest in real property is
subject to an environmental covenant, the interest is not 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.
3. Except for an assignment undertaken
pursuant to a governmental reorganization, the assignment of an environmental
covenant to a new holder is an amendment.
4. Except as otherwise provided in an
environmental covenant:
(a) A holder may not assign its interest without
the consent of the other parties; and
(b) A holder may be removed and replaced by
agreement of the other parties specified in subsection 1.
5. A court of competent jurisdiction may
fill a vacancy 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
equitable relief 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
State Department of Conservation and Natural Resources or the Division of
Environmental Protection of that Department;
(c) Any person to whom the covenant expressly
grants power to enforce;
(d) A person whose interest in the real property
or whose collateral or liability may be affected by the alleged violation of
the covenant; or
(e) A municipality or other unit of local
government in which the real property subject to the covenant is located.
2. This chapter does not limit the
regulatory authority of the agency, or the State Environmental Commission, the
State Department of Conservation and Natural Resources or the Division of
Environmental Protection of that Department, under law other than this chapter
with respect to an environmental response project.
3. A person is not responsible for or
subject to liability for environmental remediation solely because it has the
right to enforce an environmental covenant.
(Added to NRS by 2005, 1366)
NRS 445D.210 Uniformity of application and construction. In applying and construing this chapter,
consideration must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
(Added to NRS by 2005, 1366)
NRS 445D.220 Relation to Electronic Signatures in Global and National
Commerce Act. This chapter
modifies, limits or supersedes the federal Electronic Signatures in Global and
National Commerce Act, 15 U.S.C. §§ 7001 et seq., but does not modify, limit or
supersede section 101 of that Act, 15 U.S.C. § 7001(a), or authorize electronic
delivery of any of the notices described in section 103 of that Act, 15 U.S.C.
§ 7003(b).
(Added to NRS by 2005, 1366)
