Environmental Risks in Real Estate Transactions

What are the environmental risks 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.
• Regulatory liability - emissions, discharges, waste transfer, planning
• Case study

The 'Contaminated Land' and ‘ Contaminated Land Regime’ question in searches and enquiries

• What does it mean?
• Very narrow definition for the regime
• What is '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 or not?
• Case study

How to interpret environmental reports and spot issues

• 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 out?
• 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

• Don't forget the transfer of regulatory consents
• An outline of the various transfer regimes for waste management and transfer, discharges, abstraction and environmental permitting
• Case study

The environmental issues in real estate transactions course trainer is a solicitor with a Masters degree in Environmental Law and was a former council member of the UKELA (United Kingdom Environmental Law Association). In practice, she dealt with all aspects of environmental issues and the environmental issues act in real estate as they affected property and corporate transactions, landfill sites & waste management, brownfield regeneration, environmental issues in corporate transactions and so on. Formerly listed as one of the top environmental lawyers in her area in the Legal 500, she now lectures on commercial property and environmental law.

• Understand the totality of Environmental considerations affecting property transactions, land contamination risk management (LCRM) and not just the 'contaminated land regime'
• How to interpret environmental reports and spot possible issues
• How to help clients understand and manage risks through dedicated environmental risk management training
• Understand how to apportion some environmental risks between parties to transactions and which ones cannot be apportioned or indemnified

• The environmental issues in real estate transactions course gives lawyers the big picture of environmental risk in real estate transactions.
• But it also gets into detail on how to work with specific issues and provide solutions or methods to understand and manage risks.

Environmental risk management training is a ‘must know’ for anyone closely involved in real estate asset or share acquisitions including:

• Commercial real estate solicitors, trainees & paralegals dealing with brownfield land development, buying real estate property with environmental issues along with corporate support or acquisitions of industrial or investment property.

And a ‘nice to know’ for:

• Real estate lawyers who commission environmental searches and reports

Far too often do 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, and miss out 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 in fact 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 risk management training course will expose the full breadth of environmental risks that should be considered and taken into account when dealing with any land that could have been used for purposes that could have left many forms of harm on the site. It 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.

The environmental issues in real estate transactions webinar will also outline a 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, and the role of insurance in risk management.

Case studies and sample reports are included as are practical exercises involving problem areas in environmental risk. Standard precedents are discussed and critiqued.