Unrecorded Easements

[Lenny Siegel <lsiegel@cpeo.org>]

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from John Yelenick <Yelenick@earthlink.net>


Environmental contamination creates (an) "Unrecorded Easement" encumbrance.

Across the United States, there are hundred's of thousands of
environmentally contaminated real estate parcels of land.  Many of these
contaminated parcels of land leach the site contamination into
groundwater flowing across and under a property.     The most
contaminated properties are identified on the United States
Environmental Protection Agency's (USEPA) "National Priority List". 
These sites are often called "Superfund" sites.

The USEPA defines a "site" as all contaminated areas within the area
used to define the site, and any other location to which contamination
from that area has come to be located."  In other words, if groundwater
becomes contaminated from a site and flows upon or under an adjacent
property, the adjacent property is considered by the USEPA to be apart
of the contaminated site.  These adjacent residential or commercial
sites are called "non-point source" sites.

During September 2000, the City of New Orleans lost a U.S. Supreme Court
bid to stop federal officials from cleaning up a former city-owned
hazardous "Agricultural Street Landfill" (ASL) site.  During the 1970's,
about half of the site was developed with private homes, a community
center, businesses and a school.  The federal government cited the 1980
"Superfund" law, which gives government regulators a right of access to
contaminated property; in other words - an unrecorded easement upon all
the ASL privately owned and developed properties.

When any Seller delivers to any Buyer a real estate General Warranty
Deed, the Seller promises to the Buyer that a given property is free
from any unspecified encumbrances (including unrecorded easements).  The
Seller also promises to be responsible and bear the expense of defending
title if anyone asserts a rightful claim against it.

Nuisance groundwater originating from a contaminated property and
trespassing upon a neighboring "non-point source" site creates an
"unrecorded easement" upon the neighbor's property.  This encumbrance
must be disclosed during 'title' negotiations for both properties since
the easement will affect the Buyer's "bundle of rights", a lender's
appraised 'collateral' value of the property, and finally, an investors'
"Secondary Mortgage Market" risk-assessment.

John Yelenick, Instructor
Appraisal, Law & Practice
Jones Real Estate College
Denver, Colorado
Yelenick@earthlink.net

04/17/04

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

===========================================================
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http://click.topica.com/caab8LdaVxieRa8xCZRf/ Crazy Aaron Enterprises
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