What happens to a remediation escrow account when the funds are deposited in a bank that is subsequently closed and Federal Deposit Insurance Corp (FDIC) is appointed as a receiver? Some of the issues that need to be considered are illustrated in Kuruvilla Edukutharayil v. FDIC, 2013 U.S. Dist. LEXIS 8840 (N.D.Ill. 1/23/13). In this […]
Ct Allows Environmental Escrow Claim Agst FDIC To Proceed Read More »
A federal bankruptcy court authorized the owner of the upscale Marble Cliffs Crossing Apartments complex in Columbus, Ohio to install a methane gas remediation plan over the objections of the purchaser of the mortgage note, holding that the plan was necessary to protect the safety of tenants and was critical for preserving the value of
Methane Gas, an Apartment Complex and a Bankruptcy Filing Read More »
Back in October 2011, we discussed a failed $35MM development project where a bank sought damages from three environmental consultants for failing to anticipate methane gas problems at the development site. The plaintiff, BancorpSouth Bank, was a successor by merger to The Signature Bank that had financed the project. The project consisted of 150-acre site that
Ct Allows CERCLA Claim Agst Bank To Proceed In Methane Case Read More »
The twin rulings in Westwood Dev. Partners, LLC v. Draper, 2012 Del. Super. LEXIS 161, 2012 Del. Super. LEXIS 162 (Del. Super. Ct., Mar. 29, 2012) eluded our radar screen last year due to the end of the year crush of deals. While these rulings are admittedly a bit stale, we are sharing them since they provide
Parties Must Proceed To Trial on Meaning of “Satisfactory Phase 1” Contingency Read More »
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
Ct Rules Indiana Real Property Transfer Law May Be Triggered By Historic Uses Read More »
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
Landlord Liable For NYSDEC Costs Responding to Vapors at Off-Site Properties Read More »
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
NYC Developers Need to Anticipate Possible Hazardous Waste Fees Read More »
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
NYC OER Issuing Comfort Letters To Facilitate Real Estate Transactions Read More »
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
4th Circuit Allows Landlord Cost Recovery To Proceed Read More »
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
Buyer Relies on Seller/Lender Phase 1 To Detriment Read More »