April 2013

Ct Rules Indiana Real Property Transfer Law May Be Triggered By Historic Uses

Corporate and Real Estate Transactions, Disclosure of Environmental Liabilities, Environmental Due Diligence /

What started out as a toxic tort lawsuit has evolved into a precedent-setting case involving the Indiana Real Property Transfer Law (RPTL) with a potentially fascinating Racketeer Influenced and Corrupt Practices Act (RICO) ruling waiting in the wings. The legal trade press focused much of its attention on the RCRA 7002 rulings handed down by […]

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Landlord Liable For NYSDEC Costs Responding to Vapors at Off-Site Properties

MTBE, Navigation Law, oil spills, Underground Storage Tanks, vapor intrusion /

A property owner was found liable under the New York Navigation Law for cleanup costs incurred by the New York State Department of Environmental Conservation (NYSDEC)responding to gasoline fumes that had migrated a quarter of a mile from the gas station. While the vast majority of the state’s costs were associated with the cleanup of

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NYC Developers Need to Anticipate Possible Hazardous Waste Fees

Brownfields, Hazardous Waste, Navigation Law, New York Brownfield Cleanup Program, NYC OER /

Large swaths of New York City contain fill material that may contain constituents such as heavy metals. Other soils may contain VOCs, petroleum and lead paint from demolished buildings. As a result, brownfield projects in New York City can generate large quantities of excavated soil that may have to be managed as hazardous waste. Having

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NYC OER Issuing Comfort Letters To Facilitate Real Estate Transactions

Brownfields, Environmental Due Diligence, Lender Liability, Navigation Law, New York Brownfield Cleanup Program, NYC OER, Underground Storage Tanks, vapor intrusion /

EPA and some state environmental agencies may occasionally issue “comfort letters” to facilitate a particular brownfield project to assuage concerns of developers or lenders about their potential liability. However, regulators have made it clear that they do not have the resources to review conclusions in phase 1 or phase 2 reports generated during routine real

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4th Circuit Allows Landlord Cost Recovery To Proceed

CERCLA, Environmental Due Diligence /

Last year, we criticized the ruling in Stratford Holdings LLC v Fog Cap Retail Investors LLC where the district court for the southern district court of Georgia appeared to conflate reporting obligation of section 103 of CERCLA with the cost recovery and contribution provisions of CERCLA when the court granted a motion to dismiss by the defendant

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Buyer Relies on Seller/Lender Phase 1 To Detriment

Corporate and Real Estate Transactions, Environmental Due Diligence /

We have previously discussed why borrowers and purchasers should independently evaluate environmental conditions at their properties and simply rely on phase 1 reports prepared by their lenders or sellers.  Click Here. Borrowers typically believe that a site is “clean” if a bank determines that a Phase 1 is acceptable. However, what many purchasers or do

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CMBS Special Servicer May Pursue Guarantor Despite Environmental Policy

CERCLA, Corporate and Real Estate Transactions, Environmental Due Diligence, environmental insurance, Lender Liability, vapor intrusion /

ORIX Capital Markets, LLC v. Cadlerocks Centennial Drive LLC, 2013 U.S. Dist. LEXIS 6081 (D. Mass. 1/15/13) involved a relatively small commercial loan but offers lots of lessons for borrowers, their counsel and environmental consultants. In this case, Salomon Brothers Realty Corp. (Solomon) extended a ten-year loan in the amount of $1.925MM to Cadlerocks Centennial

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Fourth Circuit Affirms Ashley Rulings

Brownfields, CERCLA, Corporate and Real Estate Transactions, Environmental Due Diligence /

The United States Court of Appeals finally issued its much anticipated ruling in PCS Nitrogen v Ashley II of Charleston, 2013 U.S. App. LEXIS 6815 (4th Cir. 4/4/13) last week. However, the wait turned out to be much ado about nothing. The court affirmed the district court rulings but did not clarify perhaps the most

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