Section 147-F:6 Covenant Not to Sue.
I. The covenant not to sue shall protect against liability for contamination addressed by an approved remedial action plan, including any modifications made pursuant to RSA 147-F:13, II.
II. The covenant shall be in a form approved by the department of justice and shall contain a general description of the property and the contamination, a summary of the approved remedial action plan and a detailed description of any use restrictions placed on the property, including their scope and purpose, and the possibility of additional or modified use restrictions imposed by the department in accordance with RSA 147-F:15, IV. The covenant shall be expressly conditioned upon the provisions of paragraphs III and IV of this section.
III. (a) The covenant shall be voidable if the holder of the covenant:
(1) Engages in activities at the property that are inconsistent or interfere with the approved remedial action plan;
(2) Withdraws from the program before completion of the remedial action plan and fails to stabilize the property in accordance with RSA 147-F:8;
(3) Violates any use restrictions imposed on the property by the department in accordance with RSA 147-F:15; or
(4) Fails to comply with program requirements under RSA 147-F:16.
(b) The holder of the covenant shall be given a reasonable opportunity to cure the noncompliance after notice by the department, except that any knowing violation of any use restriction shall void the covenant. Notwithstanding cure, the holder of the covenant shall be liable for the increased harm to human health and the environment caused by the noncompliance.
IV. The covenant shall be void if the holder of the covenant obtained a determination of eligibility under RSA 147-F:4 or any approval under this chapter by fraud or material misrepresentation, by knowingly failing to disclose material information, or by providing a false certification to the department.
V. If the covenant is voided under paragraph III or paragraph IV of this section, the holder shall be strictly liable under the provisions of RSA 146-A, RSA 146-C, RSA 147-A and RSA 147-B, as applicable.
VI. The covenant shall be appurtenant to the property as follows:
(a) Upon recordation with the certificate of completion issued in accordance with RSA 147-F:13, III, the covenant not to sue shall be appurtenant to, bind and run with the eligible property. The property deed and all subsequent instruments of conveyance relating to the eligible property shall reference, by book and page number, the covenant not to sue and the certificate of completion. Such deed and instruments shall also specify that the eligible property is subject to the restrictions contained in those documents.
(b) No provision of the covenant shall be deemed void by reason of the rule against perpetuity.
(c) The rule of property law known as the rule restricting unreasonable restraints on alienation shall not be applied to defeat, limit or modify any provision of the covenant not to sue restraining the use of or physical activity at the eligible property.
Source. 1996, 241:2, eff. July 1, 1996.