Navigating Lender Liability for Environmental Cleanup and Remediation Costs

While federal law largely shields lenders from environmental liabilities and cleanup costs on indebted properties, lender missteps and poor loan documentation can result in a loss of that protection and put lenders on the hook for environmental remediation.

Environmental hazards can also negatively impact a borrower's ability to repay the loan and decrease the collateral value, which is why it is essential to uncover the hazards before the closing of the loan and formulate a plan, whether a Phase I environmental site assessment or some lesser action.

A critical protection for the lender is an indemnification agreement with the borrower as part of the loan documentation. Other key loan agreement provisions include reps and warranties, covenants, notice provisions, and inspection rights. Another option for the lender is to require the borrower to obtain insurance, usually in a pollution policy.

Lender environmental due diligence at the time of a loan default or workout is also critical as environmental hazards must be considered when assessing the collateral value and a workout plan. Of course, if foreclosure appears imminent, the lender liability must be carefully evaluated as the lender prepares to take possession of the property.

Listen as our authoritative panel of experienced attorneys analyzes lender liability for environmental cleanup and remediation liabilities. The panel will discuss theories of liability and best practices for lenders to minimize direct liability and diminution of the collateral value. The panel will address risk mitigation in loan origination and during the life of the loan, including workouts and foreclosures.