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Foreclosure Environmental Site Assessment

Partner routinely provides Phase I Environmental Site Assessments (ESA) during foreclosure to meet the scope of ASTM E1527 and the requirements of the Federal EPA All Appropriate Inquiry (AAI) Rule. A Phase I ESA during a foreclosure is similar to a normal Phase I ESA, but there are several nuances that require experience.

Three Reasons Why a Pre-foreclosure Phase I Environmental Site Assessment is Different:
  1. Absolute compliance with the All Appropriate Inquiry rule is critical to maintaining the innocent landowner defense.
  2. Recalcitrant site contacts. Be sure to use a consultant with local resources as sometimes site visits must be repeated due to a recalcitrant site contact.
  3. For residential and school properties; asbestoslead paintradon, and mold become more significant issues for deep pocket lenders. Lenders need to be prepared to manage the assets safely post foreclosure.

What's Involved

Standard Foreclosure Phase I Environmental Site Assessment Scope Items:

Historical Sources including building department records, historical aerial photographs, local street directories, fire insurance maps, and other credible sources of past uses or occupancies are reviewed as available.

Radius Map search of state and federal databases are conducted according to the current ASTM and AAI standard search distances.

Regulatory Interviews State and local government officials are interviewed in person, by telephone, or in writing to obtain information on permits and compliance history, and information indicating recognized environmental conditions in connection with the property.

Owner/Occupant Interviews past and present owners, occupants, neighbors, and/or other persons who are familiar with the property shall be attempted in person, by telephone, or in writing regarding the history, operations, management, waste management practices, and other environmental considerations for the subject property as those persons are available and open to an interview.

Site Reconnaissance is performed by an environmental professional. This shall include a reasonable observation of the property and structures, the periphery of the property, the interior common areas of structures, and a representative sample of occupant spaces. Items such as current and past uses of the property and adjoining properties; obvious geologic, hydrogeologic, topographic conditions; structures; roads; potential hazardous substances and petroleum products; storage tanks; odors; pools of liquid; drums; containers; surface waters; suspected fill materials; stained soil or pavement; stressed vegetation; solid waste; waste water; wells; and septic systems shall be noted as reasonably and visibly observed.

Environmental Lien and/or Chain of Title are typically required by our clients for Foreclosure Phase 1 Environmental Reports. The environmental lien and chain of title are required by the EPA’s All Appropriate Inquiry Rule.

Other Observations Although it is beyond the scope of an ASTM 1527 Phase 1 Environmental Site Assessment, Partner will conduct research and observations of additional issues including lead-based paint, asbestos containing building materials, radon, mold potential, and oil and gas exploration activities as part of this project.

Report A written report of our observations and conclusions are prepared. Our findings are presented in a manner consistent with standard practices. The report is prepared on the behalf of and for your exclusive use. Partner assumes no responsibility for deviations from the ASTM 1527 standard practice if by request of the client.

Related Insights

Frequently Asked Questions

It’s important because it helps assess any environmental issues that may exist on the property, which could impact the value or saleability of the property. Identifying these issues early can help prevent potential legal or financial liabilities for the new owner or lender.

A Foreclosure ESA involves a comprehensive investigation of the property’s environmental history, current use, and surrounding area to identify potential sources of contamination or environmental hazards. This includes reviewing historical records, conducting site inspections, and assessing potential risks.

There are several reasons why a lender might require a Foreclosure Environmental Site Assessment:

Reduced Risk: Identifying potential contamination issues beforehand helps the lender avoid unexpected cleanup costs and delays in selling the property.
Compliance: In some cases, federal regulations (like the Emergency Planning and Community Right-to-Know Act – EPCRA) may require assessments for foreclosed properties.
Improved Marketability: A clean assessment can make the foreclosed property more attractive to potential buyers.

A Foreclosure ESA has limitations compared to a full Phase I ESA:

Less Investigative: It relies heavily on existing data and may not involve detailed historical research or on-site sampling.
Limited Scope: Focuses on readily available information and may not uncover all potential risks.
Uncertain Access: Access to the property for a full inspection might be restricted if it’s vacant.

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