Section 35-19-9


Published: 2015

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Section 35-19-9

Section 35-19-9Duration of environmental covenants.

(a) An environmental covenant is perpetual unless any of the following conditions apply:



(1) The covenant is limited to a specific duration or terminated by the occurrence of a specific event.



(2) The covenant is terminated or modified by consent pursuant to Section 35-19-10.



(3) The covenant is terminated or modified pursuant to subsection (b).



(4) The covenant is terminated by foreclosure of an interest that has priority over the environmental covenant.



(5) The covenant is terminated or modified in an eminent domain proceeding, but only if each of the following requirements are satisfied:



a. The department is a party to the proceeding.



b. All persons identified in subsections (a) and (b) of Section 35-19-10 are given notice of the pendency of the proceeding.



c. The court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.



(b) If the department has determined that the intended benefits of the covenant can no longer be realized, or are no longer protective of human health and the environment, a court, under the doctrine of changed circumstances, in an action in which all persons identified in subsections (a) and (b) of Section 35-19-10 have been given notice, may terminate or modify the covenant or reduce its burden on the real property subject to the covenant. The departments's determination or its failure to make a determination upon request is subject to review pursuant to the Alabama Administrative Procedure Act.



(c) Except as otherwise provided in subsections (a) and (b), 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 any law relating to marketable title or dormant mineral interests.

(Act 2007-464, p. 972, §9.)