Anticipating Post-Closing Environmental Issues in Real Estate Deals

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, December 11, 2019

Recorded event now available

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Program Materials

This CLE webinar will guide counsel for buyers, sellers, and lenders in real estate transactions on structuring provisions that address post-closing environmental issues to ensure coverage for environmental liabilities. The panel will examine recent court treatment of environmental contractual clauses.

Description

Real estate transactions present the potential for significant environmental liability. The allocation of liabilities is often central to negotiating deal terms. Careful drafting of the contract provisions addressing allocation of liability is essential.

Counsel must anticipate problems that may arise after closing due to the seller's continuing obligations regarding environmental remediation. If the buyer assumes responsibility and later learns that the due diligence before closing did not accurately represent the state of the property, then the parties face another set of problems.

While in negotiations, the parties must determine at what point in the process to allocate environmental liabilities. Parties can negotiate the issues upfront before the deal is complete or they can wait until after closing and litigate after problems arise. If the deal is on shaky ground, the parties may postpone the liabilities allocation battle to finalize the transaction. Who pays for what? How will post-closing issues be resolved?

Another issue that the parties and their counsel should consider is that, when dealing with a bank, there are typically conditions attached to loans. Environmental issues that arise post-closing may affect the ability to meet those conditions. The parties should anticipate the implications of that possibility.

Listen as our authoritative panel examines environmental issues that may arise after the closing of a real estate transaction, including cost allocations, insurance, implementing indemnity provisions, and dispute resolution. The speakers will offer best practices for structuring transactions to minimize the likelihood of post-closing conflicts and to set the rules of play before a liability allocation fight.

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Outline

  1. Determining when to allocate liabilities--during contract negotiations or after closing the deal
  2. Addressing post-closing environmental issues in contract negotiations
    1. Who pays for what
    2. How will disputes be resolved
    3. Post-closing escrow agreements
  3. Dealing with banks (and their conditions on the loans post-closing)
  4. Best practices

Benefits

The panel will review these and other central issues:

  • When is the seller's obligation to remediate environmental contamination done?
  • What are the key provisions of the post-closing escrow agreement? Why is it essential?
  • What are the crucial lessons from recent court decisions for addressing post-closing issues when structuring agreements?
  • What are the best practices for allocating environmental risks in real property transactions?

Faculty

Chun, Toby
Toby Chun

Partner
Kirkland & Ellis

Mr. Chun has successfully managed the environmental aspects of hundreds of corporate and real estate transactions...  |  Read More

Karlson, Cindy
Cindy J. Karlson

Founder
Law Offices of Cindy J. Karlson

Ms. Karlson focuses on environmental and land use law, including compliance counseling, transactional work,...  |  Read More

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