2023 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.