In this subtitle the following words have the meanings indicated. “Activity and use limitation” means a restriction or obligation created under this subtitle with respect to real property. “Agency” means the Department or any other state or federal agency that determines or approves the environmental response project pursuant to which an environmental covenant is created. “Common interest community” means a condominium, cooperative, or other real property with respect to which a person, by virtue of the person’s ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or for maintenance, or improvement of other real property described in a recorded covenant that creates the common interest community. “Environmental covenant” means a servitude arising under an environmental response project that imposes activity and use limitations. “Environmental response project” means a plan or work performed for environmental remediation of real property that is conducted: Under a federal or state program governing environmental remediation of real property, including Title 7, Subtitle 5 of this article; or Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency. “Holder” means the grantee of an environmental covenant. “Person” means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. “Record”, when used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

An environmental covenant shall: State that the instrument is an environmental covenant executed pursuant to this subtitle; Contain a legally sufficient description of the real property subject to the covenant; Describe the activity and use limitations on the real property; Identify every holder; Be signed by the Agency and every holder; Unless excepted by the Agency, be signed by every owner of the fee simple of the real property subject to the covenant; and Identify the name and location of any administrative record for the environmental response project reflected in the environmental covenant. In addition to the information required under subsection (a) of this section, an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed it, including any: Requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits or proposals for any site work affecting the contamination on the property subject to the covenant; Requirements for periodic reporting describing compliance with the covenant; Rights of access to the property granted in connection with implementation or enforcement of the covenant; Brief narrative descriptions of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination; Limitations on amendment or termination of the covenant in addition to those provided under §§ 1-808 and 1-809 of this subtitle; and Rights of the holder in addition to the holder’s right to enforce the covenant under § 1-810 of this subtitle. In addition to other conditions for the Agency’s approval of an environmental covenant, the Agency may require those persons specified by the Agency who have interests in the real property to sign the covenant.

Any person, including a person that owns an interest in the real property, the Agency, or a municipality or other unit of local government, may be a holder of an environmental covenant. An environmental covenant may identify more than one holder. The interest of a holder of an environmental covenant is an interest in real property. A right of an agency under this subtitle or under an environmental covenant, other than a right as a holder, is not an interest in real property. An agency is bound by any obligation it assumes in an environmental covenant, but an agency does not assume obligations merely by signing an environmental covenant. Any person other than an agency that signs an environmental covenant is bound by the obligations the person assumes in the covenant, but signing the covenant does not change obligations, rights, or protections granted or imposed under law other than this subtitle except as provided in the covenant. The provisions of this subsection apply to interests in real property in existence at the time an environmental covenant is created or amended. An interest that has priority under other law is not affected by an environmental covenant unless the person that owns the interest subordinates that interest to the covenant. A person that owns an interest that has priority under other law is not required under this subtitle to subordinate that interest to an environmental covenant or to agree to be bound by the covenant. A subordination agreement may be contained in an environmental covenant covering real property or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners’ association. An agreement by a person to subordinate an interest that has priority under other law to an environmental covenant affects the priority of that person’s interest but does not by itself impose any affirmative obligation on the person with respect to the environmental covenant.

An environmental covenant that complies with this subtitle runs with the land. An environmental covenant that is otherwise effective is valid and enforceable even if: It is not appurtenant to an interest in real property; It can be or has been assigned to a person other than the original holder; It is not of a character that has been recognized traditionally at common law; It imposes a negative burden; It imposes an affirmative obligation on a person having an interest in the real property or on the holder; The benefit or burden does not touch or concern real property; There is no privity of estate or contract; The holder dies, ceases to exist, resigns, or is replaced; or The owner of an interest subject to the environmental covenant and the holder are the same person. An instrument that creates restrictions or obligations with respect to real property that would qualify as activity and use limitations except for the fact that the instrument was recorded before October 1, 2005, is not invalid or unenforceable because of any of the limitations on enforcement of interests described in subsection (b) of this section or because it was identified as an easement, servitude, deed restriction, or other interest. This subtitle does not apply in any other respect to such an instrument. This subtitle does not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under state law.

This subtitle does not authorize a use of real property that is otherwise prohibited by zoning, by law other than this subtitle regulating use of real property, or by a recorded instrument that has priority over the environmental covenant. An environmental covenant may prohibit or restrict uses of real property that are authorized by zoning or by law other than this subtitle.

A copy of an environmental covenant shall be provided by the persons and in the manner required by the agency to: Each person that signed the covenant; Each person holding a recorded interest in the real property subject to the covenant; Each person in possession of the real property subject to the covenant; Each municipality or other unit of local government in which real property subject to the covenant is located; and Any other person the Agency requires. The validity of a covenant is not affected by failure to provide a copy of the covenant as required under this section.

An environmental covenant and any amendment or termination of the covenant must be recorded in every county in which any portion of the real property subject to the covenant is located. For purposes of indexing, a holder shall be treated as a grantee. Except as otherwise provided under § 1-808(c) of this subtitle, an environmental covenant is subject to the laws of the state governing recording and priority of interests in real property.

An environmental covenant is perpetual unless it is: By its terms, limited to a specific duration or terminated by the occurrence of a specific event; Terminated by consent as provided under § 1-809 of this subtitle; Terminated under subsection (b) of this section; Terminated by foreclosure of an interest that has priority over the environmental covenant; or Terminated or modified in an eminent domain proceeding, if: The Agency that signed the covenant is a party to the proceeding; Each person identified in § 1-809(a) and (b) of this subtitle is given notice of the pendency of the proceeding; and The court determines, after a hearing, that the termination or modification will not adversely affect human health or the environment. 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 § 1-809(a) and (b) of this subtitle 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 is subject to review in accordance with the Administrative Procedure Act. Except as otherwise provided in subsections (a) and (b) of this 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.

An environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by: The Agency; Unless waived by the Agency, the current owner of the fee simple of the real property subject to the covenant; 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 Except as otherwise provided in subsection (d)(2) of this section, the holder. If an interest in real property is subject to an environmental covenant, the interest is not 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. Except for an assignment undertaken in accordance with a governmental reorganization, assignment of an environmental covenant to a new holder shall be considered to be an amendment of the covenant. Except as otherwise provided in an environmental covenant: A holder may not assign its interest without consent of the other parties; and A holder may be removed and replaced by agreement of the other parties specified in subsection (a) of this section. A court of competent jurisdiction may fill a vacancy in the position of holder.

A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by: A party to the covenant; The Agency or, if it is not the Agency, the Department; Any person to whom the covenant expressly grants power to enforce; A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the covenant; or The county or municipal corporation in which the real property subject to the covenant is located. This subtitle does not limit the regulatory authority of the Agency or the Department under law, other than this subtitle, with respect to an environmental response project. A person is not responsible for or subject to liability for environmental remediation solely because the person has the right to enforce an environmental covenant.

The Department shall establish and maintain a registry that contains all environmental covenants and any amendment or termination of those covenants. The registry may contain any other information concerning environmental covenants and the real property subject to them that the Department considers appropriate. For purposes of the Maryland Public Information Act, the registry is a public record. After an environmental covenant or an amendment or termination of a covenant is filed in the registry established under subsection (a) of this section, a notice of the covenant, amendment, or termination that meets the requirements of paragraph (2) of this subsection may be recorded in the land records in lieu of recording the entire covenant. A notice shall contain: A legally sufficient description and any available street address of the real property subject to the covenant; The name and address of the owner of the fee simple interest in the real property, the Department, and the holder if other than the Department; A statement that the covenant, amendment, or termination is available in a registry at the Department, including the method of any electronic access; and A statement that the notice is notification of an environmental covenant executed pursuant to this subtitle. A statement in substantially the following form, executed with the same formalities as a deed in the State, satisfies the requirements of subsection (b) of this section: “1.    This notice is filed in the land records of (political subdivision) of (name of jurisdiction in which the real property is located) pursuant to § 1–811 of the Environment Article. This notice and the covenant, amendment, or termination to which it refers may impose significant obligations with respect to the property described below. A legal description of the property is attached as Exhibit A to this notice. The address of the property that is subject to the environmental covenant is (insert address of property or state that the address is not available). The name and address of the owner of the fee simple interest in the real property on the date of this notice is (name of current owner of the property and the owner’s current address as shown on the tax records of the jurisdiction in which the property is located). The environmental covenant, amendment, or termination was signed by (name and address of the signing agency). The environmental covenant, amendment, or termination was filed in the registry on (date of filing). The full text of the covenant, amendment, or termination and any other information required by the Department of the Environment is on file and available for inspection and copying in the registry maintained for that purpose by the Department.”.

Except as provided under subsection (b) of this section, this subtitle modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act. This subtitle does not modify, limit, or supersede § 7001(a) or authorize electronic delivery of any of the notices described in § 7003(b) of the federal Electronic Signatures in Global and National Commerce Act.

This subtitle shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this subtitle among states enacting it.

This subtitle may be cited as the Maryland Uniform Environmental Covenants Act.

If any provision of this subtitle or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this subtitle which can be given effect without the invalid provision or application, and to this end the provisions of this subtitle are severable.