731. An action may be brought by any person whose property is
injuriously affected, or whose personal enjoyment is lessened by a
nuisance, as defined in Section 3479 of the Civil Code, and by the
judgment in that action the nuisance may be enjoined or abated as
well as damages recovered therefor. A civil action may be brought in
the name of the people of the State of California to abate a public
nuisance, as defined in Section 3480 of the Civil Code, by the
district attorney or county counsel of any county in which the
nuisance exists, or by the city attorney of any town or city in which
the nuisance exists. Each of those officers shall have concurrent
right to bring an action for a public nuisance existing within a town
or city. The district attorney, county counsel, or city attorney of
any county or city in which the nuisance exists shall bring an action
whenever directed by the board of supervisors of the county, or
whenever directed by the legislative authority of the town or city.
731a. Whenever any city, city and county, or county shall have
established zones or districts under authority of law wherein certain
manufacturing or commercial or airport uses are expressly permitted,
except in an action to abate a public nuisance brought in the name
of the people of the State of California, no person or persons, firm
or corporation shall be enjoined or restrained by the injunctive
process from the reasonable and necessary operation in any such
industrial or commercial zone or airport of any use expressly
permitted therein, nor shall such use be deemed a nuisance without
evidence of the employment of unnecessary and injurious methods of
operation. Nothing in this act shall be deemed to apply to the
regulation and working hours of canneries, fertilizing plants,
refineries and other similar establishments whose operation produce
offensive odors.
731b. In any action or proceeding to abate the use of an airport or
an airpark, proof that the airport or airpark has been in existence
for three years constitutes a rebuttable presumption which shall be
prima facie evidence that the operation of the airport or airpark
does not constitute a nuisance.
731c. Injury to formations bearing oil or gas or to oil or gas
wells caused by the subsurface migration of any substance as a result
of secondary recovery operations for oil or gas conducted in
accordance with good oilfield practices shall not be grounds for
enjoining the secondary recovery operations if an undertaking is
given for the payment of any compensable damages to which the owners
of interests in the formations or wells may be entitled resulting
from the injury. Any benefit to the injured property from the
secondary recovery operation shall be considered in mitigation of
damages for the injury.
731.5. Whenever any person unlawfully closes any public trail, any
person who uses such trail or would use such trail, and any
association, corporation or other entity whose membership as a whole
is adversely affected by such closure may bring an action to enjoin
such closure.
The prevailing party in such action shall be entitled to recover
reasonable attorney's fees, in addition to court costs.
As used in this section, a public trail is any trail to which the
public in general has a right of access, which right is established
pursuant to a recorded document conveying to a political corporation
or governmental agency, specifying the nature of such public trail,
specifically describing the location thereof, and naming the record
owners of the real property over which such trail exists if created
by a license, permit or easement. It includes, but is not limited to,
pedestrian, equestrian, and boating trails, but does not include any
public street, road, or highway.
732. If a guardian, conservator, tenant for life or years, joint
tenant, or tenant in common of real property, commit waste thereon,
any person aggrieved by the waste may bring an action against him
therefor, in which action there may be judgment for treble damages.
733. Any person who cuts down or carries off any wood or underwood,
tree, or timber, or girdles or otherwise injures any tree or timber
on the land of another person, or on the street or highway in front
of any person's house, village, or city lot, or cultivated grounds;
or on the commons or public grounds of any city or town, or on the
street or highway in front thereof, without lawful authority, is
liable to the owner of such land, or to such city or town, for treble
the amount of damages which may be assessed therefor, in a civil
action, in any Court having jurisdiction.
734. Nothing in the last section authorizes the recovery of more
than the just value of the timber taken from uncultivated woodland
for the repair of a public highway or bridge upon the land, or
adjoining it.
735. If a person recover damages for a forcible or unlawlful entry
in or upon, or detention of any building or any cultivated real
property, judgment may be entered for three times the amount at which
the actual damages are assessed.
736. (a) Notwithstanding any other provision of law, a secured
lender may bring an action for breach of contract against a borrower
for breach of any environmental provision made by the borrower
relating to the real property security, for the recovery of damages,
and for the enforcement of the environmental provision, and that
action or failure to foreclose first against collateral shall not
constitute an action within the meaning of subdivision (a) of Section
726, or constitute a money judgment for a deficiency or a deficiency
judgment within the meaning of Section 580a, 580b, or 580d, or
subdivision (b) of Section 726. No injunction for the enforcement of
an environmental provision may be issued after (1) the obligation
secured by the real property security has been fully satisfied, or
(2) all of the borrower's rights, title, and interest in and to the
real property security has been transferred in a bona fide
transaction to an unaffiliated third party for fair value.
(b) The damages a secured lender may recover pursuant to
subdivision (a) shall be limited to reimbursement or indemnification
of the following:
(1) If not pursuant to an order of any federal, state, or local
governmental agency relating to the cleanup, remediation, or other
response action required by applicable law, those costs relating to a
reasonable and good faith cleanup, remediation, or other response
action concerning a release or threatened release of hazardous
substances which is anticipated by the environmental provision.
(2) If pursuant to an order of any federal, state, or local
governmental agency relating to the cleanup, remediation, or other
response action required by applicable law which is anticipated by
the environmental provision, all amounts reasonably advanced in good
faith by the secured lender in connection therewith, provided that
the secured lender negotiated, or attempted to negotiate, in good
faith to minimize the amounts it was required to advance under the
order.
(3) Indemnification against all liabilities of the secured lender
to any third party relating to the breach and not arising from acts,
omissions, or other conduct which occur after the borrower is no
longer an owner or operator of the real property security, and
provided the secured lender is not responsible for the
environmentally impaired condition of the real property security in
accordance with the standards set forth in subdivision (d) of Section
726.5. For purposes of this paragraph, the term "owner or operator"
means those persons described in Section 101(20)(A) of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9601, et seq.).
(4) Attorneys' fees and costs incurred by the secured lender
relating to the breach.
The damages a secured lender may recover pursuant to subdivision
(a) shall not include (i) any part of the principal amount or accrued
interest of the secured obligation, except for any amounts advanced
by the secured lender to cure or mitigate the breach of the
environmental provision that are added to the principal amount, and
contractual interest thereon, or (ii) amounts which relate to a
release which was knowingly permitted, caused, or contributed to by
the secured lender or any affiliate or agent of the secured lender.
(c) A secured lender may not recover damages against a borrower
pursuant to subdivision (a) for amounts advanced or obligations
incurred for the cleanup or other remediation of real property
security, and related attorneys' fees and costs, if all of the
following are true:
(1) The original principal amount of, or commitment for, the loan
or other obligation secured by the real property security did not
exceed two hundred thousand dollars ($200,000).
(2) In conjunction with the secured lender's acceptance of the
environmental provision, the secured lender agreed in writing to
accept the real property security on the basis of a completed
environmental site assessment and other relevant information from the
borrower.
(3) The borrower did not permit, cause, or contribute to the
release or threatened release.
(4) The deed of trust or mortgage covering the real property
security has not been discharged, reconveyed, or foreclosed upon.
(d) This section is not intended to establish, abrogate, modify,
limit, or otherwise affect any cause of action other than that
provided by subdivision (a) that a secured lender may have against a
borrower under an environmental provision.
(e) This section shall apply only to environmental provisions
contracted in conjunction with loans, extensions of credit,
guaranties, or other obligations made, renewed, or modified on or
after January 1, 1992. Notwithstanding the foregoing, this section
shall not be construed to validate, invalidate, or otherwise affect
in any manner the rights and obligations of the parties to, or the
enforcement of, environmental provisions contracted before January 1,
1992.
(f) For purposes of this section:
(1) "Borrower" means the trustor under a deed of trust, or a
mortgagor under a mortgage, where the deed of trust or mortgage
encumbers real property security and secures the performance of the
trustor or mortgagor under a loan, extension of credit, guaranty, or
other obligation. The term includes any successor-in-interest of the
trustor or mortgagor to the real property security before the deed of
trust or mortgage has been discharged, reconveyed, or foreclosed
upon.
(2) "Environmental provision" means any written representation,
warranty, indemnity, promise, or covenant relating to the existence,
location, nature, use, generation, manufacture, storage, disposal,
handling, or past, present, or future release or threatened release,
of any hazardous substance into, onto, beneath, or from the real
property security, or to past, present, or future compliance with any
law relating thereto, made by a borrower in conjunction with the
making, renewal, or modification of a loan, extension of credit,
guaranty, or other obligation involving the borrower, whether or not
the representation, warranty, indemnity, promise, or covenant is or
was contained in or secured by the deed of trust or mortgage, and
whether or not the deed of trust or mortgage has been discharged,
reconveyed, or foreclosed upon.
(3) "Hazardous substance" means any of the following:
(A) Any "hazardous substance" as defined in subdivision (h) of
Section 25281 of the Health and Safety Code.
(B) Any "waste" as defined in subdivision (d) of Section 13050 of
the Water Code.
(C) Petroleum, including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel, or any mixture thereof.
(4) "Real property security" means any real property and
improvements, other than a separate interest and any related interest
in the common area of a residential common interest development, as
the terms "separate interest," "common area," and "common interest
development" are defined in Section 1351 of the Civil Code, or real
property which contains only 1 to 15 dwelling units, which in either
case (A) is solely used (i) for residential purposes, or (ii) if
reasonably contemplated by the parties to the deed of trust or
mortgage, for residential purposes as well as limited agricultural or
commercial purposes incidental thereto, and (B) is the subject of an
issued certificate of occupancy unless the dwelling is to be owned
and occupied by the borrower.
(5) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, including continuing
migration, of hazardous substances into, onto, or through soil,
surface water, or groundwater. The term does not include actions
directly relating to the incorporation in a lawful manner of building
materials into a permanent improvement to the real property
security.
(6) "Secured lender" means the beneficiary under a deed of trust
against the real property security, or the mortgagee under a mortgage
against the real property security, and any successor-in-interest of
the beneficiary or mortgagee to the deed of trust or mortgage.
731. An action may be brought by any person whose property is
injuriously affected, or whose personal enjoyment is lessened by a
nuisance, as defined in Section 3479 of the Civil Code, and by the
judgment in that action the nuisance may be enjoined or abated as
well as damages recovered therefor. A civil action may be brought in
the name of the people of the State of California to abate a public
nuisance, as defined in Section 3480 of the Civil Code, by the
district attorney or county counsel of any county in which the
nuisance exists, or by the city attorney of any town or city in which
the nuisance exists. Each of those officers shall have concurrent
right to bring an action for a public nuisance existing within a town
or city. The district attorney, county counsel, or city attorney of
any county or city in which the nuisance exists shall bring an action
whenever directed by the board of supervisors of the county, or
whenever directed by the legislative authority of the town or city.
731a. Whenever any city, city and county, or county shall have
established zones or districts under authority of law wherein certain
manufacturing or commercial or airport uses are expressly permitted,
except in an action to abate a public nuisance brought in the name
of the people of the State of California, no person or persons, firm
or corporation shall be enjoined or restrained by the injunctive
process from the reasonable and necessary operation in any such
industrial or commercial zone or airport of any use expressly
permitted therein, nor shall such use be deemed a nuisance without
evidence of the employment of unnecessary and injurious methods of
operation. Nothing in this act shall be deemed to apply to the
regulation and working hours of canneries, fertilizing plants,
refineries and other similar establishments whose operation produce
offensive odors.
731b. In any action or proceeding to abate the use of an airport or
an airpark, proof that the airport or airpark has been in existence
for three years constitutes a rebuttable presumption which shall be
prima facie evidence that the operation of the airport or airpark
does not constitute a nuisance.
731c. Injury to formations bearing oil or gas or to oil or gas
wells caused by the subsurface migration of any substance as a result
of secondary recovery operations for oil or gas conducted in
accordance with good oilfield practices shall not be grounds for
enjoining the secondary recovery operations if an undertaking is
given for the payment of any compensable damages to which the owners
of interests in the formations or wells may be entitled resulting
from the injury. Any benefit to the injured property from the
secondary recovery operation shall be considered in mitigation of
damages for the injury.
731.5. Whenever any person unlawfully closes any public trail, any
person who uses such trail or would use such trail, and any
association, corporation or other entity whose membership as a whole
is adversely affected by such closure may bring an action to enjoin
such closure.
The prevailing party in such action shall be entitled to recover
reasonable attorney's fees, in addition to court costs.
As used in this section, a public trail is any trail to which the
public in general has a right of access, which right is established
pursuant to a recorded document conveying to a political corporation
or governmental agency, specifying the nature of such public trail,
specifically describing the location thereof, and naming the record
owners of the real property over which such trail exists if created
by a license, permit or easement. It includes, but is not limited to,
pedestrian, equestrian, and boating trails, but does not include any
public street, road, or highway.
732. If a guardian, conservator, tenant for life or years, joint
tenant, or tenant in common of real property, commit waste thereon,
any person aggrieved by the waste may bring an action against him
therefor, in which action there may be judgment for treble damages.
733. Any person who cuts down or carries off any wood or underwood,
tree, or timber, or girdles or otherwise injures any tree or timber
on the land of another person, or on the street or highway in front
of any person's house, village, or city lot, or cultivated grounds;
or on the commons or public grounds of any city or town, or on the
street or highway in front thereof, without lawful authority, is
liable to the owner of such land, or to such city or town, for treble
the amount of damages which may be assessed therefor, in a civil
action, in any Court having jurisdiction.
734. Nothing in the last section authorizes the recovery of more
than the just value of the timber taken from uncultivated woodland
for the repair of a public highway or bridge upon the land, or
adjoining it.
735. If a person recover damages for a forcible or unlawlful entry
in or upon, or detention of any building or any cultivated real
property, judgment may be entered for three times the amount at which
the actual damages are assessed.
736. (a) Notwithstanding any other provision of law, a secured
lender may bring an action for breach of contract against a borrower
for breach of any environmental provision made by the borrower
relating to the real property security, for the recovery of damages,
and for the enforcement of the environmental provision, and that
action or failure to foreclose first against collateral shall not
constitute an action within the meaning of subdivision (a) of Section
726, or constitute a money judgment for a deficiency or a deficiency
judgment within the meaning of Section 580a, 580b, or 580d, or
subdivision (b) of Section 726. No injunction for the enforcement of
an environmental provision may be issued after (1) the obligation
secured by the real property security has been fully satisfied, or
(2) all of the borrower's rights, title, and interest in and to the
real property security has been transferred in a bona fide
transaction to an unaffiliated third party for fair value.
(b) The damages a secured lender may recover pursuant to
subdivision (a) shall be limited to reimbursement or indemnification
of the following:
(1) If not pursuant to an order of any federal, state, or local
governmental agency relating to the cleanup, remediation, or other
response action required by applicable law, those costs relating to a
reasonable and good faith cleanup, remediation, or other response
action concerning a release or threatened release of hazardous
substances which is anticipated by the environmental provision.
(2) If pursuant to an order of any federal, state, or local
governmental agency relating to the cleanup, remediation, or other
response action required by applicable law which is anticipated by
the environmental provision, all amounts reasonably advanced in good
faith by the secured lender in connection therewith, provided that
the secured lender negotiated, or attempted to negotiate, in good
faith to minimize the amounts it was required to advance under the
order.
(3) Indemnification against all liabilities of the secured lender
to any third party relating to the breach and not arising from acts,
omissions, or other conduct which occur after the borrower is no
longer an owner or operator of the real property security, and
provided the secured lender is not responsible for the
environmentally impaired condition of the real property security in
accordance with the standards set forth in subdivision (d) of Section
726.5. For purposes of this paragraph, the term "owner or operator"
means those persons described in Section 101(20)(A) of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9601, et seq.).
(4) Attorneys' fees and costs incurred by the secured lender
relating to the breach.
The damages a secured lender may recover pursuant to subdivision
(a) shall not include (i) any part of the principal amount or accrued
interest of the secured obligation, except for any amounts advanced
by the secured lender to cure or mitigate the breach of the
environmental provision that are added to the principal amount, and
contractual interest thereon, or (ii) amounts which relate to a
release which was knowingly permitted, caused, or contributed to by
the secured lender or any affiliate or agent of the secured lender.
(c) A secured lender may not recover damages against a borrower
pursuant to subdivision (a) for amounts advanced or obligations
incurred for the cleanup or other remediation of real property
security, and related attorneys' fees and costs, if all of the
following are true:
(1) The original principal amount of, or commitment for, the loan
or other obligation secured by the real property security did not
exceed two hundred thousand dollars ($200,000).
(2) In conjunction with the secured lender's acceptance of the
environmental provision, the secured lender agreed in writing to
accept the real property security on the basis of a completed
environmental site assessment and other relevant information from the
borrower.
(3) The borrower did not permit, cause, or contribute to the
release or threatened release.
(4) The deed of trust or mortgage covering the real property
security has not been discharged, reconveyed, or foreclosed upon.
(d) This section is not intended to establish, abrogate, modify,
limit, or otherwise affect any cause of action other than that
provided by subdivision (a) that a secured lender may have against a
borrower under an environmental provision.
(e) This section shall apply only to environmental provisions
contracted in conjunction with loans, extensions of credit,
guaranties, or other obligations made, renewed, or modified on or
after January 1, 1992. Notwithstanding the foregoing, this section
shall not be construed to validate, invalidate, or otherwise affect
in any manner the rights and obligations of the parties to, or the
enforcement of, environmental provisions contracted before January 1,
1992.
(f) For purposes of this section:
(1) "Borrower" means the trustor under a deed of trust, or a
mortgagor under a mortgage, where the deed of trust or mortgage
encumbers real property security and secures the performance of the
trustor or mortgagor under a loan, extension of credit, guaranty, or
other obligation. The term includes any successor-in-interest of the
trustor or mortgagor to the real property security before the deed of
trust or mortgage has been discharged, reconveyed, or foreclosed
upon.
(2) "Environmental provision" means any written representation,
warranty, indemnity, promise, or covenant relating to the existence,
location, nature, use, generation, manufacture, storage, disposal,
handling, or past, present, or future release or threatened release,
of any hazardous substance into, onto, beneath, or from the real
property security, or to past, present, or future compliance with any
law relating thereto, made by a borrower in conjunction with the
making, renewal, or modification of a loan, extension of credit,
guaranty, or other obligation involving the borrower, whether or not
the representation, warranty, indemnity, promise, or covenant is or
was contained in or secured by the deed of trust or mortgage, and
whether or not the deed of trust or mortgage has been discharged,
reconveyed, or foreclosed upon.
(3) "Hazardous substance" means any of the following:
(A) Any "hazardous substance" as defined in subdivision (h) of
Section 25281 of the Health and Safety Code.
(B) Any "waste" as defined in subdivision (d) of Section 13050 of
the Water Code.
(C) Petroleum, including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel, or any mixture thereof.
(4) "Real property security" means any real property and
improvements, other than a separate interest and any related interest
in the common area of a residential common interest development, as
the terms "separate interest," "common area," and "common interest
development" are defined in Section 1351 of the Civil Code, or real
property which contains only 1 to 15 dwelling units, which in either
case (A) is solely used (i) for residential purposes, or (ii) if
reasonably contemplated by the parties to the deed of trust or
mortgage, for residential purposes as well as limited agricultural or
commercial purposes incidental thereto, and (B) is the subject of an
issued certificate of occupancy unless the dwelling is to be owned
and occupied by the borrower.
(5) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, including continuing
migration, of hazardous substances into, onto, or through soil,
surface water, or groundwater. The term does not include actions
directly relating to the incorporation in a lawful manner of building
materials into a permanent improvement to the real property
security.
(6) "Secured lender" means the beneficiary under a deed of trust
against the real property security, or the mortgagee under a mortgage
against the real property security, and any successor-in-interest of
the beneficiary or mortgagee to the deed of trust or mortgage.
731. An action may be brought by any person whose property is
injuriously affected, or whose personal enjoyment is lessened by a
nuisance, as defined in Section 3479 of the Civil Code, and by the
judgment in that action the nuisance may be enjoined or abated as
well as damages recovered therefor. A civil action may be brought in
the name of the people of the State of California to abate a public
nuisance, as defined in Section 3480 of the Civil Code, by the
district attorney or county counsel of any county in which the
nuisance exists, or by the city attorney of any town or city in which
the nuisance exists. Each of those officers shall have concurrent
right to bring an action for a public nuisance existing within a town
or city. The district attorney, county counsel, or city attorney of
any county or city in which the nuisance exists shall bring an action
whenever directed by the board of supervisors of the county, or
whenever directed by the legislative authority of the town or city.
731a. Whenever any city, city and county, or county shall have
established zones or districts under authority of law wherein certain
manufacturing or commercial or airport uses are expressly permitted,
except in an action to abate a public nuisance brought in the name
of the people of the State of California, no person or persons, firm
or corporation shall be enjoined or restrained by the injunctive
process from the reasonable and necessary operation in any such
industrial or commercial zone or airport of any use expressly
permitted therein, nor shall such use be deemed a nuisance without
evidence of the employment of unnecessary and injurious methods of
operation. Nothing in this act shall be deemed to apply to the
regulation and working hours of canneries, fertilizing plants,
refineries and other similar establishments whose operation produce
offensive odors.
731b. In any action or proceeding to abate the use of an airport or
an airpark, proof that the airport or airpark has been in existence
for three years constitutes a rebuttable presumption which shall be
prima facie evidence that the operation of the airport or airpark
does not constitute a nuisance.
731c. Injury to formations bearing oil or gas or to oil or gas
wells caused by the subsurface migration of any substance as a result
of secondary recovery operations for oil or gas conducted in
accordance with good oilfield practices shall not be grounds for
enjoining the secondary recovery operations if an undertaking is
given for the payment of any compensable damages to which the owners
of interests in the formations or wells may be entitled resulting
from the injury. Any benefit to the injured property from the
secondary recovery operation shall be considered in mitigation of
damages for the injury.
731.5. Whenever any person unlawfully closes any public trail, any
person who uses such trail or would use such trail, and any
association, corporation or other entity whose membership as a whole
is adversely affected by such closure may bring an action to enjoin
such closure.
The prevailing party in such action shall be entitled to recover
reasonable attorney's fees, in addition to court costs.
As used in this section, a public trail is any trail to which the
public in general has a right of access, which right is established
pursuant to a recorded document conveying to a political corporation
or governmental agency, specifying the nature of such public trail,
specifically describing the location thereof, and naming the record
owners of the real property over which such trail exists if created
by a license, permit or easement. It includes, but is not limited to,
pedestrian, equestrian, and boating trails, but does not include any
public street, road, or highway.
732. If a guardian, conservator, tenant for life or years, joint
tenant, or tenant in common of real property, commit waste thereon,
any person aggrieved by the waste may bring an action against him
therefor, in which action there may be judgment for treble damages.
733. Any person who cuts down or carries off any wood or underwood,
tree, or timber, or girdles or otherwise injures any tree or timber
on the land of another person, or on the street or highway in front
of any person's house, village, or city lot, or cultivated grounds;
or on the commons or public grounds of any city or town, or on the
street or highway in front thereof, without lawful authority, is
liable to the owner of such land, or to such city or town, for treble
the amount of damages which may be assessed therefor, in a civil
action, in any Court having jurisdiction.
734. Nothing in the last section authorizes the recovery of more
than the just value of the timber taken from uncultivated woodland
for the repair of a public highway or bridge upon the land, or
adjoining it.
735. If a person recover damages for a forcible or unlawlful entry
in or upon, or detention of any building or any cultivated real
property, judgment may be entered for three times the amount at which
the actual damages are assessed.
736. (a) Notwithstanding any other provision of law, a secured
lender may bring an action for breach of contract against a borrower
for breach of any environmental provision made by the borrower
relating to the real property security, for the recovery of damages,
and for the enforcement of the environmental provision, and that
action or failure to foreclose first against collateral shall not
constitute an action within the meaning of subdivision (a) of Section
726, or constitute a money judgment for a deficiency or a deficiency
judgment within the meaning of Section 580a, 580b, or 580d, or
subdivision (b) of Section 726. No injunction for the enforcement of
an environmental provision may be issued after (1) the obligation
secured by the real property security has been fully satisfied, or
(2) all of the borrower's rights, title, and interest in and to the
real property security has been transferred in a bona fide
transaction to an unaffiliated third party for fair value.
(b) The damages a secured lender may recover pursuant to
subdivision (a) shall be limited to reimbursement or indemnification
of the following:
(1) If not pursuant to an order of any federal, state, or local
governmental agency relating to the cleanup, remediation, or other
response action required by applicable law, those costs relating to a
reasonable and good faith cleanup, remediation, or other response
action concerning a release or threatened release of hazardous
substances which is anticipated by the environmental provision.
(2) If pursuant to an order of any federal, state, or local
governmental agency relating to the cleanup, remediation, or other
response action required by applicable law which is anticipated by
the environmental provision, all amounts reasonably advanced in good
faith by the secured lender in connection therewith, provided that
the secured lender negotiated, or attempted to negotiate, in good
faith to minimize the amounts it was required to advance under the
order.
(3) Indemnification against all liabilities of the secured lender
to any third party relating to the breach and not arising from acts,
omissions, or other conduct which occur after the borrower is no
longer an owner or operator of the real property security, and
provided the secured lender is not responsible for the
environmentally impaired condition of the real property security in
accordance with the standards set forth in subdivision (d) of Section
726.5. For purposes of this paragraph, the term "owner or operator"
means those persons described in Section 101(20)(A) of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9601, et seq.).
(4) Attorneys' fees and costs incurred by the secured lender
relating to the breach.
The damages a secured lender may recover pursuant to subdivision
(a) shall not include (i) any part of the principal amount or accrued
interest of the secured obligation, except for any amounts advanced
by the secured lender to cure or mitigate the breach of the
environmental provision that are added to the principal amount, and
contractual interest thereon, or (ii) amounts which relate to a
release which was knowingly permitted, caused, or contributed to by
the secured lender or any affiliate or agent of the secured lender.
(c) A secured lender may not recover damages against a borrower
pursuant to subdivision (a) for amounts advanced or obligations
incurred for the cleanup or other remediation of real property
security, and related attorneys' fees and costs, if all of the
following are true:
(1) The original principal amount of, or commitment for, the loan
or other obligation secured by the real property security did not
exceed two hundred thousand dollars ($200,000).
(2) In conjunction with the secured lender's acceptance of the
environmental provision, the secured lender agreed in writing to
accept the real property security on the basis of a completed
environmental site assessment and other relevant information from the
borrower.
(3) The borrower did not permit, cause, or contribute to the
release or threatened release.
(4) The deed of trust or mortgage covering the real property
security has not been discharged, reconveyed, or foreclosed upon.
(d) This section is not intended to establish, abrogate, modify,
limit, or otherwise affect any cause of action other than that
provided by subdivision (a) that a secured lender may have against a
borrower under an environmental provision.
(e) This section shall apply only to environmental provisions
contracted in conjunction with loans, extensions of credit,
guaranties, or other obligations made, renewed, or modified on or
after January 1, 1992. Notwithstanding the foregoing, this section
shall not be construed to validate, invalidate, or otherwise affect
in any manner the rights and obligations of the parties to, or the
enforcement of, environmental provisions contracted before January 1,
1992.
(f) For purposes of this section:
(1) "Borrower" means the trustor under a deed of trust, or a
mortgagor under a mortgage, where the deed of trust or mortgage
encumbers real property security and secures the performance of the
trustor or mortgagor under a loan, extension of credit, guaranty, or
other obligation. The term includes any successor-in-interest of the
trustor or mortgagor to the real property security before the deed of
trust or mortgage has been discharged, reconveyed, or foreclosed
upon.
(2) "Environmental provision" means any written representation,
warranty, indemnity, promise, or covenant relating to the existence,
location, nature, use, generation, manufacture, storage, disposal,
handling, or past, present, or future release or threatened release,
of any hazardous substance into, onto, beneath, or from the real
property security, or to past, present, or future compliance with any
law relating thereto, made by a borrower in conjunction with the
making, renewal, or modification of a loan, extension of credit,
guaranty, or other obligation involving the borrower, whether or not
the representation, warranty, indemnity, promise, or covenant is or
was contained in or secured by the deed of trust or mortgage, and
whether or not the deed of trust or mortgage has been discharged,
reconveyed, or foreclosed upon.
(3) "Hazardous substance" means any of the following:
(A) Any "hazardous substance" as defined in subdivision (h) of
Section 25281 of the Health and Safety Code.
(B) Any "waste" as defined in subdivision (d) of Section 13050 of
the Water Code.
(C) Petroleum, including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel, or any mixture thereof.
(4) "Real property security" means any real property and
improvements, other than a separate interest and any related interest
in the common area of a residential common interest development, as
the terms "separate interest," "common area," and "common interest
development" are defined in Section 1351 of the Civil Code, or real
property which contains only 1 to 15 dwelling units, which in either
case (A) is solely used (i) for residential purposes, or (ii) if
reasonably contemplated by the parties to the deed of trust or
mortgage, for residential purposes as well as limited agricultural or
commercial purposes incidental thereto, and (B) is the subject of an
issued certificate of occupancy unless the dwelling is to be owned
and occupied by the borrower.
(5) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, including continuing
migration, of hazardous substances into, onto, or through soil,
surface water, or groundwater. The term does not include actions
directly relating to the incorporation in a lawful manner of building
materials into a permanent improvement to the real property
security.
(6) "Secured lender" means the beneficiary under a deed of trust
against the real property security, or the mortgagee under a mortgage
against the real property security, and any successor-in-interest of
the beneficiary or mortgagee to the deed of trust or mortgage.
