Chapter 6: Selling and Leasing Property
Environmental considerations have a prominent role in the sale and lease of commercial or industrial property. Identifying and resolving environmental issues in purchase agreements and leases can take considerable time. Sellers, buyers, landlords and tenants need to evaluate the environmental circumstances and risk of the property and structure the real estate transaction to address disclosures, due diligence, allocation of risk and liability and the timing of environmental steps.
§ 6.1 Introduction
§ 6.2 Seller’s Disclosures
§ 6.3 Seller’s Representations and Warranties
§ 6.4 Buyer’s Due Diligence
§ 6.4.1 Letters of Intent
§ 6.4.2 Purchase Agreement Terms
Scope of Due Diligence
Controlling the Information
Confidentiality
Access
Environmental Testing
Timing Issues
§ 6.4.3 Conducting Due Diligence
Phase I Environmental Site Assessments
Phase II Environmental Site Assessments
§ 6.5 Management of Risk and Allocation of Liability
§ 6.5.1 EPA Risk Mitigation Tools
§ 6.5.2 State Risk Mitigation Tools
§ 6.5.3 Indemnification
§ 6.6 Third-Party Agreements
§ 6.7 Landlord-Tenant Issues
§ 6.7.1 Legal Liabilities
CERCLA
§ 6.7.2 Managing Landlord-Tenant Liabilities
Negotiation of the Lease Agreement
Establishing a Baseline
Cleanup of Leased Property
Indemnities
§ 6.7.3 Sample Lease Provisions
J. KEMPER WILL, ESQ.
Burns, Figa and Will, P.C.
J. Kemper Will is a founding shareholder with Burns, Figa and Will, P.C. The firm’s main areas of practice are commercial and environmental litigation, business transactions, real estate, and environmental law. Mr. Will, who heads the firm’s Environment and Water Group, has handled environmental matters for over thirty years, including litigation, compliance matters, and property transactions. He has been involved in over fifty Superfund cases and hundreds of contaminated property transactions. He is a frequent lecturer on environmental topics, including environmental assessments. Mr. Will has recognized achievement with brownfields and urban renewal projects. Mr. Will’s employment experience includes seven years as an Environmental Protection Agency attorney in Washington, D.C. and Denver. He has been in private practice since 1979. Mr. Will received degrees from Spring Hill College (Undergraduate, Biology and Philosophy), University of Wisconsin-Milwaukee (Masters, Biology and Education), and Georgetown University (Law). He received a distinguished Environmental Achievement Award from EPA in 2004.
SCOTT A. CLARK, ESQ.
Burns, Figa & Will, P.C.
Scott A. Clark is a shareholder at Burns, Figa & Will, P.C. He represents private and public clients on a wide range of environmental and natural resources matters, including brownfields, remediation, real estate transactions, litigation, permitting, petroleum storage tank fund applications, regulatory compliance, water quality, and water rights. Mr. Clark has practiced law in Denver since 1994. He received his B.A. degree in biology from DePauw University, and his J.D. degree from the University of Denver, where he was a member of the University of Denver Law Review. Mr. Clark also devotes time to several professional and charitable organizations, including the Colorado Hazardous Waste Management Society, for which he has served as president, vice-president and director, the Southeast Business Partnership, for which he is co-chair of the Water Subcommittee, the Colorado Brownfields Foundation, for which he serves on the advisory committee, and Habitat for Humanity of Metro Denver, for which he serves on the board of directors.
