Ala. Admin. Code r. 335-5-4-.01 - Duration Of Covenants
(1) An
environmental covenant is perpetual unless any of the following conditions
apply:
(a) Its term is limited to a specific
duration or terminated by the occurrence of a specific event.
(b) It is terminated or modified pursuant to
335-5-4-.01(2).
(c) It is
terminated or modified by consent pursuant to
335-5-4-.02.
(d) It is terminated by foreclosure of an
interest that has priority over the environmental covenant.
(e) It is terminated or modified in an
eminent domain proceeding, but only if all of the following requirements are
satisfied:
1. The Department is a party to
the proceeding.
2. All persons
identified in
335-5-4-.02(1) and
(2) are given notice of the pendency of the
proceeding.
3. The court
determines, after hearing, that the termination or modification will not
adversely affect human health, public welfare, or the environment.
(2) If the Department
determines that the intended benefits of the covenant can no longer be
realized, or are no longer protective of human health and the environment, it
shall give notice of at least thirty (30) days to all persons identified in
335-5-4-.02(1) and
(2), of its intention to petition a court,
under the doctrine of changed circumstances, for termination of the covenant or
reduction of its burden on the real property subject to the covenant. The
Department's determination or its failure to make a determination upon request
is subject to review pursuant to the Alabama Administrative Procedures Act,
Code of Ala. 1975, §§
41-22-1 to
41-22-27 (AAPA). After the applicable provisions of AAPA have been satisfied, the
Department may petition a court to terminate or reduce the covenant.
(3) Except as otherwise provided in 335-5-4
-.01(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 by
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 the application of any law relating to
marketable title or dormant mineral interests.
Notes
Authors: James L. Bryant; Lawrence A. Norris
Statutory Authority: Code of Ala. 1975, §§ 35-19-9; 35-19-13.
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