§ 71-3605 — Environmental easements; certain common law rules not applicable

New York § 71-3605

• Jurisdiction: New York
• Law ENV: Environmental Conservation
• Title 36: Environmental Easements
• Art. 71: Enforcement

Text

§ 71-3605. Environmental easements; certain common law rules not\n applicable.\n 1. An environmental easement shall be granted by the title owners of\nthe relevant real estate only by an instrument, that complies with the\nrequirements of section 5-703 of the general obligations law.\n 2. The title owners shall furnish to the department abstracts of title\nand other documents sufficient to enable the department to determine\nthat the easements shall be enforceable. An environmental easement shall\nbe in a form prescribed by the department. An environmental easement\nshall describe the property encumbered by the easement by adequate legal\ndescription or by reference to a recorded map showing its boundaries and\nbearing the seal and signature of a licensed land surveyor or, if the\neasement encumbers the entire property described in a deed of record,\nthe easement may incorporate by reference the description in such deed,\notherwise it shall refer to the liber and page of the deed or deeds of\nthe record owner or owners of the real property burdened by the\nenvironmental easement. An environmental easement shall:\n (a) name the state, acting through the department, as grantee;\n (b) contain a complete description of any use restrictions and/or\nengineering control to which the real property is subject;\n (c) run with the land, binding the owner of the land and the owner's\nsuccessors and assigns;\n (d) include an acknowledgment by the commissioner of acceptance of the\neasement by the department; and\n (e) include an agreement to incorporate, either in full or by\nreference, the environmental easement in any leases, licenses, or other\ninstruments granting a right to use the property that may be affected by\nsuch easement.\n 3. Until such time as the environmental easement is extinguished, the\nproperty deed and all subsequent instruments of conveyance relating to\nthe subject property shall state in at least fifteen-point bold-faced\ntype: "This property is subject to an environmental easement held by the\nNew York state department of environmental conservation pursuant to\ntitle 36 of article 71 of the environmental conservation law."\n 4. An environmental easement granted pursuant to this title shall be\nenforceable in perpetuity. After the recording of the easement, each\ninstrument transferring an interest in the area affected by the easement\nshall include a specific reference to the recorded easement.\n 5. An environmental easement granted pursuant to this section may be\nextinguished or amended only by a release or amendment of the easement\nexecuted by the commissioner and filed with the office of the recording\nofficer for the county or counties where the land is situated in the\nmanner prescribed by article nine of the real property law.\n 6. For any person who intentionally violates an environmental easement\nthe department may revoke the certificate of completion provided by\nsection 27-1419 of this chapter as to the relevant real estate.\n 7. An environmental easement shall be held only by the state, except\nthat the state shall not be authorized or empowered to acquire or hold\nany environmental easement which is subject to the provisions of article\nfourteen of the constitution.\n 8. An environmental easement shall be duly recorded and indexed as\nsuch in the office of the recording officer for the county or counties\nwhere the land is situate in the manner prescribed by article nine of\nthe real property law. The property deed and all subsequent instruments\nof conveyance relating to the property encumbered by the easement shall\nreference, by book and page number, the environmental easement. Such\ndeed and instrument shall also specify that the eligible property is\nsubject to the restrictions contained in such easement. An instrument\nfor the purpose of creating, conveying, modifying, or terminating an\nenvironmental easement shall not be effective unless recorded.\n 9. The department shall include a copy of each environmental easement\nin the database created pursuant to section 27-1415 of this chapter and\nmake such database readily searchable.\n 10. An environmental easement may be enforced in law or equity by its\ngrantor, by the state, or any affected local government as defined in\nsection 71-3603 of this title. Such easement is enforceable against the\nowner of the burdened property, any lessees, and any person using the\nland. Enforcement shall not be defeated because of any subsequent\nadverse possession, laches, estoppel, reversion or waiver. No general\nlaw of the state which operates to defeat the enforcement of any\ninterest in real property shall operate to defeat the enforcement of any\nenvironmental easement unless such general law expressly states the\nintent to defeat the enforcement of such easement or provides for the\nexercise of the power of eminent domain. It is not a defense in any\naction to enforce an environmental easement that:\n (a) it is not appurtenant to an interest in real property;\n (b) it is not of a character that has been recognized traditionally at\ncommon law;\n (c) it imposes a negative burden;\n (d) it imposes affirmative obligations upon the owner of any interest\nin the burdened property;\n (e) the benefit does not touch or concern real property;\n (f) there is no privity of estate or of contract; or\n (g) it imposes an unreasonable restraint on alienation.\n 11. Agents, employees, or other representatives of the state may enter\nand inspect the property burdened by an environmental easement in a\nreasonable manner and at reasonable times to assure compliance with the\nrestriction.\n 12. The department may promulgate regulations establishing standards\nand procedures for environmental easements.\n