Limitation of environmental covenant

(a) An environmental covenant shall be perpetual, which shall be stated in such covenant, unless it is: (1) By its terms limited to a specific duration or terminated by the occurrence of a specific event; (2) Terminated by consent pursuant to Code Section 44-16-10; (3) Terminated pursuant to subsection (b) of this Code section; (4) Terminated by foreclosure of an interest that has priority over the environmental covenant; or (5) Terminated or modified in an eminent domain proceeding, but only if: 895 44-16-10 (A) The agency that signed the covenant is a party to the proceeding; (B) All persons identified in subsections (a) and (b) of Code Section 44-16-10 are given notice of the pendency of the proceeding; and (C) The court determines, after hearing, that the termination or modification will not adversely affect human health or the environment. (b) 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 (a) and (b) of Code Section 44-16-10 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 of the current owner of the fee simple of the real property or by any affected member of the public shall be subject to review pursuant to Article 1 of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” (c) Except as otherwise provided in subsections (a) and (b) of this Code section, 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 Code Sections 44-5-60 and 44-5-168. History. Code 1981, § 44-16-9, enacted by Ga. L. 2008, p. 1168, § 1/HB 1132; Ga. L. 2019, p. 1056, § 44/SB 52. 44-16-10. Amendment or termination; interest in environmental covenant not affected by amendment; role of court. (a) An environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by: (1) The agency; (2) The current owner of the fee simple of the real property subject to the covenant; (3) Each person that 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 896 44-16-11 (4) Except as otherwise provided in paragraph (2) of subsection (d) of this Code section, the holder. (b) If an interest in real property is subject to an environmental covenant, the interest shall not be 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. (c) Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder shall be an amendment. (d) Except as otherwise provided in an environmental covenant: (1) A holder may not assign its interest without consent of the other parties; and (2) A holder may be removed and replaced by agreement of the other parties specified in subsection (a) of this Code section. (e) A court of competent jurisdiction may fill a vacancy in the position of holder. History. Code 1981, § 44-16-10, enacted by Ga. L. 2008, p. 1168, § 1/HB 1132. 44-16-11. Liability for violation and enforcement of environmental covenant.