The title of this post sounds like a teaser to a bad joke but unfortunately it refers to the latest round of motions in two sprawling lawsuits involving a defunct planned community that was to be developed on what proved to be a part of a world war 2 bombing practice range. The defendants include […]
A Lawyer, an Underwriter and an Appraisor-An Update Read More »
Article 12 of the New York State Navigation Law imposes strict liability on “dischargers” of petroleum. The term “discharger” has been broadly construed so that it can encompass owners of property with abandoned or inactive underground storage tanks (USTs) even where the owners never used the tanks. A recent New York State appeals court illustrates
NY State Court Affirms Broad Liability for Owners of Property With Old USTs Read More »
Last year, the brownfield community was rattled by the Ashley II decision of United States District court for the District of South Carolina holding that a brownfield developer failed to comply with the requirements of the Bona Fide Prospective Purchaser defense. The court ruled the developer did not comply with its post-closing continuing care obligations
Most buildings in New York City have fuel oil-fired burners to supply heat and hot water. The heating oil can range from #2 oil which is similar to diesel fuel to #6 fuel oil which is heavy and thick. Buildings typically store the fuel in storage tanks located in basements or beneath the sidewalk. The tanks
The Importance of Hiring an Environmental Consultant For Leaking NYC Heating Oil Tanks Read More »
In a recent ASTM conference call, several consultants took the position that they could not envision a circumstances under which a “vapor encroachment condition” (VEC) identified pursuant to ASTM E2600-10 would not be a “recognized environmental condition” (REC) pursuant to ASTM E1527-05. I was surprised by this statement and therefore have decided to post about
Should a Vapor Encroachment Condition (VEC) Always Be a REC? Read More »
The federal district court for the Southern District of New York denied a motion to dismiss filed by Morgan Stanley Mortgage Capital, Inc (MSMC)that it failed to adequately disclose environmental conditions at a shopping center and should not be required to buy back the $81MM loan. This case has some yummy nuggets. In this case,
CMBS Lender Kept In Case Over Questions About Environmental Disclosure Read More »
Lenders have long played a role as “surrogate regulator” in transactions. In many cases, lenders force potential borrowers to investigate suspected contamination and frequently require remediation under state oversight. Borrowers often balk at these requests any may even retain their own independent consultants to try to convince lenders that the work is not required or
NY Case Illustrates Why Borrowers Should Not Simply Rely on Lender Approval of Phase 1 Read More »
The ASTM E1527 Phase 1 standard contains a term “Historic Recognized Environmental Condition” or HREC. The term was added to the standard in 2000 to provide a tool for consultants to help distinguish between properties where there was a release in the past that was satisfactorily remediated with sites that have historic contamination that have
State Court Decision Ilustrates Dangers of Inadequately Evaluating Neighboring HRECs Read More »
A New Jersey Appeals Court refused to disturb a $248,928 damage award against a bank involving a sale of contaminated property. The plaintiff had argued that the trial court had erred in calculating the damages flowing from the bank’s breach of contract. In Ritschel v. Spencer Savings Bank,SLA, 2011 N.J. Super. Unpub. LEXIS 1257 (May 16, 2011),
State Appeals Court Affirms Damage Award Against Bank for Sale of Contaminated Property Read More »
Buyer agreed to purchase former oil field in 1996 to develop for residential complex. Contract included 40 pages detailing remedial obligations of parties. Buyer had five years to complete investigate of property and inform seller of contamination. If cleanup exceeded $30MM, seller could take over cleanup. Contract also provided that after completion of sellers’ corrective