All Forum Posts by: Lawrence P. Schnapf

find out if gas station or dry cleaner ever operated at the strip. 75%-80% of dry cleaners have suffered leaks and resulted in contamination. 

you should use a "Certified Subsurface Evaluator". 

agree with Henry Clark. need to do full environmental. these properties can be nasty depending on tenants. 

I disagree that an oil tank is a deal killer. I've been an environmental lawyer for over 35 years in New York and New Jersey. lenders have varying risk tolerances. statements that lenders wont lend on homes with tanks is just overbroad and just plain wrong. Tanks may raise questions but they can be answered or addressed.  

i dont think the regulations will get tougher for home heating oil tanks because of concern for costs. That is why NJDEP created the streamlined process for unregulated tanks. Market conditions will likely be drive the decisions. Burning oil for heat is probably going to be viewed as antiquated the further along we go in this century.    

Oil tank is fine if it is not leaking. there are plenty of environmental consultants who can test tank. they can take soil samples around the tank to see if there are any signs of leakage. Partner Environmental Science and Engineering is reasonably priced. If the tank is leaking but the groundwater is deep, could still go forward but ask for discount to address the tank. 

If the tank is less than 2,000 gallons, it is considered unregulated. Here is the NJDEP website for unregulated home heating oil tanks:https://www.nj.gov/dep/srp/unr... 

The Department of Environmental Conservation (NYSDEC) and the Oil Spill Fund have interpreted the NY Oil Spill Act (formally known as article 12 of the Navigation Law) so that if the tank is in the ground when you take title, you would be considered the owner of the tank for liability purposes. If you are an innocent party, you can seek reimbursement from the Spill Fund.

So it would make sense to have the tank removed prior to the closing. Then, you could perform cleanup under DEC oversight and file a claim for reimbursement from the Oil Spill Fund.  

if the garage will be doing servicing, better to have sewer. chemicals discharged to septics have been a source of groundwater contamination resulting in cleanups. Lots of dry cleaners and motor vehicle repair shops have caused contamination because of septics. 

what is the purpose of an inspection if you are not reserving right to back out of deal? if your client is worried about material repairs, then you could put in a monetary cap on the "as is" (e.g. taking "as is" unless the inspection report identifies defects that would exceed X amount of $$ ? 

Note that "as is" only protects seller against breach of representation or warranty (i.e. contract claim). the clause alone does not protect seller against environmental claims unless the buyer expressly waives all statutory and common law rights. 

Out of abundance of caution, you should include the EPA lead paint brochure. Make sure signed copy of the lease addendum is placed in the tenant files. when EPA inspectors visit, the first thing they look at are the tenant files...