Enviromental Protection Liens
Environmental Protection Liens
The United States Environmental Protection agency (EPA) has been given broad and powerful authority to clean up areas in which hazardous wastes are discovered. Hazardous wastes can include dangerous radioactive materials, but are more likely to be acids and other chemicals processed in various types of factories, as well as some farming processes. The costs of removing these substances from the soil and/or groundwater can be very high, often into the millions of dollars.
One of the EPA’s most important powers, when it determines that money needs to be spent to clean up an area, is the right to file a “Superlien” against the real estate. These liens are “super” because they have more than the usual priority rights.
Priority determines the order in which creditors are paid in the event of a foreclosure. When we talk of a “First Mortgage” we mean that the mortgage has first or best priority for payment of its debt above and before any other debt affecting the property. Mortgages and other liens have their priority based upon the date of filing, liens filed on a date before other liens have a higher priority.
The “Super Lien” is the only type of lien which overrides normal priority rules and grants the EPA lien the highest priority, even if the EPA lien is filed years after the other instruments. This is a major concern of lenders, as they do not want to lose their favored priority position, and possibly lose any chance of their loan being re-paid.
These liens can affect prior owners of the property, back to the date on which the EPA believes the hazardous waste was first created or placed on the property. An example of what can happen would be if a number of paint barrels were delivered to a place in 1940 and those barrels were now leaking hazardous materials into the groundwater. The present owners of the property, as well and any previous owners since 1940 can be sued by the EPA to pay for the cleanup costs.
A title search should disclose any enviromental liens, as they will be filed in the recorders office. If one is discovered, the title company will deal with them on a case-by-case basis as to insurability.
Any questions can be directed to Benchmark Title at 618-239-3750. Please feel free to call or email:
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