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September 20, 2021

Legal Update
Dylan Sanders

Even Decades Later, Subsequent Landowners Can Be Saddled With Wetlands Restoration Obligations, MA Supreme Judicial Court Says

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Purchasers of real estate in Massachusetts need to brace themselves for the possibility of bearing responsibility for wetland restoration on their property, no matter how long ago those wetlands were filled or otherwise altered, nor how many owners preceded them.

That was the conclusion of the Massachusetts Supreme Judicial Court in Conservation Commission of Norton v. Pesa. The Court held that the power of conservation authorities to sue a property owner for wetlands remediation renews with each transfer of the property. This can create unanticipated and substantial liability for a purchaser and complicates the task of performing due diligence, as they can be on the hook for actions taken decades before they acquired the land.

Statute of Repose Renews With Each Transfer

The Massachusetts Wetlands Protection Act, Mass. Gen. Laws chap. 131, § 40 gives conservation authorities the power to obtain an order directing a landowner to restore a previously filled wetland without approval. That power extends to a subsequent owner, as long as the conservation board or another applicable entity seeks that relief within three years from the recording of the deed or the death that resulted in transfer of title to the new owner.

Pesa involved land whose owner filled in an area of wetlands in 1984 larger than that authorized by the Commission. The owner transferred the property to his wife and himself in 1996. After he died, his wife sold the property to Pesa in 2014. Though the Commission requested restoration immediately before Pesa’s purchase, it had not actively sought remediation at any point prior.

The Superior Court held that the statute of repose required the Commission to bring an enforcement action within three years of the first transfer of ownership in the property after the unauthorized filling originally took place. Because the unauthorized filling occurred no later than 1984, and because the owner who filled the wetlands transferred the property to himself and his wife in 1996, the court determined that the statute of repose barred enforcement actions commencing after 1999.

The Supreme Judicial Court reversed, holding that, “By its plain language… the act permits a conservation commission to bring an enforcement action against ‘any person’ who acquires property on which work has been done in violation of the act, not just the first such person.”

Accordingly, “the act, therefore, permits an action to be initiated against any subsequent owner, so long as that action is commenced within three years of that particular individual obtaining title to the property.”

This decision will significantly impact both buyers and sellers as each will want to take steps to ensure that any potential liability for wetlands remediation is fully explored and allocated between the parties.