February 7, 2011

Question from Jacob, Wisconsin an owner of commercial property: “Our neighboring property owner asked if his consultant can enter our property to collect soil, water and soil vapor from four locations. We are concerned about the request. What are the implications for us and our property?”

Response: “Thanks for your question. Please note the text of the disclaimer that appears below. We do not have an attorney client relationship with you or any other person reviewing this response. Therefore, we cannot provide you with specific legal advice. We encourage you to contact qualified legal counsel, review the facts of your situation and seek advice about your specific situation.

Based on the facts you have provided it appears that your neighbor may be seeking access to your property to meet a demand of a governmental agency or a third party who seeks to investigate the environmental conditions on your property. It is possible that there has been a release of a hazardous substances or pollutants on your neighbor’s property that these materials may have migrated to your property. If groundwater flows from the neighbor’s property toward your property, it is possible that the groundwater under your property may have been impacted.

Although we cannot provide legal advice, you should consider contacting a qualified attorney to review the situation. Before you permit access to your property, you may want to learn the basis for the request. Perhaps the neighbor can explain the background for the request. You may want to conduct an independent review of the situation.

Your questions and concerns are justified. If your property is subject to contamination, it may affect its value. The environmental condition of your property is an important consideration if you need to refinance and use your property as collateral or for a prospective purchaser or their lender who may be financing a purchase.

It may be possible to review governmental records related to the request. Depending upon the situation, it may be appropriate to consider drafting a legal agreement governing access to your property. In an agreement governing access to your property you could cover a number of issues including:

  • The proposed location of the tests,
  • A clear description of the work,
  • The amount of time required for the tests (is it a temporary request or will sampling be required over time),
  • Specification of the exact locations involved in the testing (sampling locations may be moved so as not to disrupt your operations),
  • A requirement that any parties entering on your property are covered by an adequate insurance policy,
  • An indemnification provision that protects you if there is a claim for damages or other expenses that are incurred as a result of the entry and testing, and
  • A request that you be provided a copy of any test results and communications with any governmental authorities about the sampling and test data that is generated.

We hope this information is of help to you as you review this issue and determine an appropriate course of action to respond to the request for access.

At Hessian & McKasy we provide clients with advice on a range of issues related to environmental and real estate matters. Our environmental attorneys regularly advise clients on matters involved in the testing that may be conducted on property. We offer innovative law service packages.  To learn more, please visit: https://www.enviroattorney.net/sample-price-list.php.

The views contained within this entry and on this website are my own and do not constitute those of Hessian & McKasy, a Professional Association.


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