Environmental Risks in Real Estate Transactions

What Environmental Risks are Affecting Property Transactions?

• Risk from adjoining property - does your search deal with this?

• Risk to adjoining property - public nuisance in environmental law and private nuisance in environmental law

• Statutory nuisance & its proposed reform

• Who can sue you for nuisance? What amounts to an actionable nuisance?

• Does your environmental search identify these risks?

• Or is it down to you to interpret and identify these risks?

• Don't forget invasive species - current position on Knotweed

• Contractual liability of parties under leases and indemnities

• Criminal liability - water, waste, asbestos, etc.

• This environmental issues in real estate transactions course explores regulatory liability - emissions, discharges, waste transfer, planning

• Opening case study

The 'Contaminated Land' and ‘Contaminated Land Regime’: The Question in Searches and Enquiries

• What does it mean?

• Very narrow definition for the regime

• What are 'significant harm' and 'significant pollution'?

• Source-pathway-receptor linkages

• The new 'Land Contamination Risk Management' approach

• Few actual sites within the regime

• The new way - clean up by planning conditions rather than the contaminated land regime

• Does the polluter pay - or the owner/occupier?

• Is it a real concern?

• Case study

How to Interpret Environmental Reports and Spot Issues

• Environmental issues in real estate transactions training explores common issues in land with industrial history and other situations

• Lusts, gas and expansive slags - the usual suspects

• What are the reports telling you, and what might they be missing?

• When might a 'pass' actually be a 'fail'? False negatives and positives

• Can consultants cause problems? Site investigation licences and indemnities

• Case study

Risk Management: Indemnities and Other Tactics

• Assessment and prioritising of risk issues

• Your role and the consultant's role

• Managing and apportioning environmental risks when buying property with environmental issues

• Warranties and Indemnities & drafting issues

• Criminal liability - not insurable

• Liability of directors and senior managers

• The role of insurance - some policies aren't what they seem

• Case study

Post-Transaction Issues

• Not forgetting the transfer of regulatory consent

• An outline of the various transfer regimes for waste management and transfer, discharges, abstraction and environmental permitting

• Final case study

Training Objectives

Environmental issues in real estate transactions will cover:

• The totality of environmental considerations that affect property transactions.

• Land contamination risk management (LCRM), and not just the 'contaminated land regime'.

• Interpret environmental reports and spot possible issues.

• Help clients understand and manage risks through dedicated environmental risk management training.

• Understand how to apportion some environmental risks between parties to transactions. Also, which cannot be apportioned or indemnified.

Training Course Summary

Far too often, real estate lawyers commission environmental reports without fully understanding one main thing.

Search companies often confine their assessment to the risk of land falling within the limited scope of the contaminated land regime. They may miss out on or do not draw attention to other significant environmental contamination in real estate or real estate environmental issues. Thus, a 'clear search' or 'pass' may hide significant issues, leading to litigation and even negligence claims against firms - the result of 'false negatives'.

Search companies are often not proactive in drawing attention to the shortcomings of their reports. In some cases, consultants can cause problems with their ground investigations, which could result in aborted deals and liabilities for a seller.

Redcliffe’s environmental issues in real estate transactions course will expose the full breadth of environmental risks that should be considered and taken into account, especially when dealing with any land used for purposes that could have left many forms of harm on the site.

Training will outline where these risks are going to fall and the extent to which this can be managed or apportioned in the documentation and other ways.

This workshop will also outline the methodology for:

• Presenting and assessing such risks to clients

• What risks cannot be changed but have to be accepted as part of the deal risk

• The role of insurance in risk management

Included in this environmental real estate training are case studies and sample reports, as well as practical exercises involving problem areas in environmental risk. We also discuss and critique standard precedents.