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Protecting Secured Creditors from Liability for Adverse Environmental Conditions

Property transfers always involve inherent risks. Potential liability for adverse environmental conditions is a risk that can be particularly difficult to properly assess, even for experienced financial institutions. In many instances concerns over environmental conditions have prevented or halted development (or redevelopment) plans. However, there are tools that creditors can use to properly assess these risks and protect themselves in these transactions. Some proactive steps are relatively easy and inexpensive, and are usually prerequisites to seeking protection under safe harbor provisions such as the one found in CERCLA. If these steps are properly taken, those who provide financing for commercial transactions can not only protect their assets but also will have a competitive advantage over those who fail to take such steps.