Description
The risk allocation of environmental liabilities in real estate transactions is often essential to the terms of the deal. There are several key issues to consider when negotiating risk allocation, liability release, and indemnity--whether a buyer or a seller. Even though indemnity provisions are some of the most common tools for allocating risk, they may also present many unforeseen pitfalls.
The First Circuit Court of Appeals' decision in VFC Partners 26 v. Cadlerocks Centennial Drive is an example of a line of decisions demonstrating that the specific language in environmental indemnity agreements is critical in real estate transactions.
Under that series of rulings, the specific language of the environmental indemnity provision--and not general concepts of indemnity--controls and determines whether particular costs or damages will be subject to indemnity.
Counsel to buyers, sellers, and lenders in real estate and other commercial transactions must carefully consider negotiation strategy options and know how to memorialize indemnity provisions to ensure coverage for potential environmental liabilities and cleanup costs (in some cases, to exclude coverage).
Listen as our authoritative panel discusses environmental release and indemnity agreements in transactions, including how the courts treat these agreements, as well as examines the key provisions to address. The panel will offer best practices for negotiating and structuring the contract and anticipating the potential for litigation post-closing due to challenges to indemnity claims.
Presented By
Ms. Jessen’s practice focuses on the range of contaminated property redevelopment issues, including environmental due diligence, negotiating purchase and sale agreements, cleanup plans, development agreements and environmental insurance policies, severed mineral interests, and professional service and construction contracting. She advises and represents clients before regulatory agencies regarding remedy selection, administrative orders, cleanup standards, institutional controls, redevelopment, and community relations activities under voluntary cleanup agreements and regulatory orders.
Ms. Karlson focuses on environmental and land use law, including compliance counseling, transactional work, administrative matters and litigation. Her work involves pre-transaction counseling and structuring of deals, developing risk management strategies, negotiating contractual language on environmental risk and allocation of liability for known and unknown conditions, and environmental due diligence.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Thursday, June 6, 2024
- schedule
1:00 p.m. ET./10:00 a.m. PT
- Environmental indemnity agreements and court treatment
- Key provisions
- Negotiating and structuring the agreement
The panel will review these and other key issues:
- When is an environmental indemnity agreement necessary, and when is it not useful?
- What are the differences between a first-party release and third-party indemnification?
- What are the key provisions of the environmental indemnity agreement?
- How do environmental indemnity provisions complement other real estate purchase and sale agreements?
- What are the critical lessons from recent court decisions for structuring environmental indemnity agreements?
- What are best practices for allocating environmental risks in real property transactions?
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