[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)