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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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