NY Env Conserv L § 71-3605 (2021)
2021 New York Laws ENV - Environmental Conservation Article 71 - Enforcement Title 36 - Environmental Easements 71-3605 - Environmental Easements; Certain Common Law Rules Not Applicable.

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