Corporate and Real Estate Transactions

NY Case Illustrates Dangers of Completing Environmental Questionnaires

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

The decision in Revell v Guido, 956 N.Y.S.2d 343 (App. Div-3rd Dept. 2012) is another example of the limits of “as is” contracts when it comes to environmental issues. The doctrine of caveat emptor is still valid in commercial transactions but may not insulate sellers from liability when they make misstatements in environmental questionnaires or […]

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Ct Allows Environmental Escrow Claim Agst FDIC To Proceed

Brownfields, Corporate and Real Estate Transactions, Lender Liability, Underground Storage Tanks / By

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

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Parties Must Proceed To Trial on Meaning of “Satisfactory Phase 1” Contingency

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

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

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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 / By

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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Buyer Relies on Seller/Lender Phase 1 To Detriment

Corporate and Real Estate Transactions, Environmental Due Diligence / By

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 / By

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 / By

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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EPA PCB Reinterpretation Will Help Facilitate Brownfield Development

Brownfields, Corporate and Real Estate Transactions, Environmental Due Diligence, Hazardous Waste / By

This post is the first installment of a new series discussing common mistakes and best practices for brownfield development. In this piece, we discuss PCBs in building materials. The unexpected presence of PCBs in building materials is a common source of cost overruns in brownfield redevelopment projects are costs and delays. Recently, EPA announced a

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Ct Finds Reheater Replacement Projects Triggered New Source Review

Air Pollution, Corporate and Real Estate Transactions, Environmental Due Diligence / By

In United States v. La. Generating, LLC, 2012 U.S. Dist. LEXIS 134195 (M.D. La. 9/19/12), a federal district court ruled that reheater replacement projects for a coal-fired power plant did not qualify for the Routine Maintenance, Repair and Replacement (RMRR) exception to the New Source Review (NSR) program. As a result, the defendant who acquired the coal plant

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EB-5 Visa Program Becomes Important Source of Project Funding in NYC

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

In parts of NYC, it feels like 2006 again with construction projects on every block. How is this possible at a time when lenders still shying away from construction loans and equity investors demand 20% returns? One popular source of relatively cheap financing is the so-called EB-5 visa program that is available to foreigners who invest

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