Expletive Deleted

Expletive-DeletedBy James L. Goldsmith, Esq.

In news and other articles, another’s profanity is frequently replaced with “expletive deleted.” Some use the term in self-censorship. More often, we just let the expletives fly. At that moment it might feel quite good to do so; upon reflection, not so good. Realtors® hold no ownership on profanity or expletives deleted, the inspiration for this article did, however, arise in the context of a Realtor®-related dispute.

The matter involved the termination of a broker- salesperson relationship. The salesperson was moving on and the broker was quite unhappy. A dispute arose over payment for transactions that were pending at the time the salesperson gave notice, and about other money matters and file possession. The details matter to the disputants, but not so much to us.

The aggrieved salesperson enlisted the aid of an attorney who, like many of us, believe that every effort should be made to spare a brawl. He wrote to the broker and explained the issue from his client’s perspective and made a financial demand to be exchanged for a release from further liability.

Replies to a demand are best fashioned once one has cooled off. The broker, however, was not of this mind and before reading the entire letter called the attorney and let him have it. Expletive deleted. Expletive deleted. Expletive deleted.

Not unpredictably the broker’s call did not bring the lawyer to his knees or send him packing. Instead, the lawyer hastened to sue the broker and brokerage. The broker assumed his errors and omissions insurance policy would cover the costs of defense and losses, if any. It did not. The matter was not asserted by a consumer claiming to have been harmed by the Realtor®’s malpractice. By the time the insurer declined coverage, the broker was beyond the 20 days provided to respond to the complaint. The lawyer sent a 10-day notice of intent to take a default judgment and assured the broker, in writing, that there would be no extension of time for any reason (most lawyers will grant an extension). It seems that the broker’s initial telephone call had left its mark!

It was I who was ultimately engaged by the broker to defend the suit. Noting the notice of intent to take a default, I immediately called the Plaintiff’s lawyer and after introducing myself and the matter in which I had been engaged, I was cut off. There followed a well-articulated harangue about what an EXPLETIVE DELETED my client was! I would receive no courtesy (no personal animosity intended) and that the lawyer and his clients would not capitulate, mediate or take any action that might resolve the matter without my client having to pay the maximum penalty. Further, as a result of my client not deleting his expletives, but instead letting it all hang out there in that call, the agent was going to the Real Estate Commission to file a complaint.

In my 40 years of practice I have had exchanges with opposing counsel that had been, expletive deleted, miserable. But I know I will not make another attorney unball his fist because of what I say. While their credibility may be markedly diminished in my eyes due to their rants, I do not reply in kind. “We will agree to disagree” conveys enough.

I know my broker client will spend much more in attorneys’ fees because of that call. My broker client has lost the ability to compromise a claim because of that call. My broker will suffer a slight loss of credibility in the eyes of one or a few folks because of that call.

Animus is not our friend. A heightened emotional state can bring out the worst. We reveal information we might otherwise hold back. We arouse anger in others and jeopardize compromise that might be in our client’s best interest.

So what to do when the position taken by another player in our transactional setting is annoying if not angering? First, take a chill pill. Feign another call or a situation that calls for you to remove yourself from the conversation. Cool down and call back later.

Second, orient yourself. The transaction is not about you, but rather your client. The client bears the fallout though you may lose a fee. Divest yourself of some baggage by understanding who it is that benefits or loses from the situation. Client disappointment comes with the territory. While your client deserves your best effort, this is not a situation where a ship is sinking or you are losing a loved one. Stay oriented.

Third, take advantage of your adversary’s emotional state. Let him or her talk. You might get something. Ask for the basis of their position: “I’d like to understand your position and will give you the floor and listen to the reasons by which you conclude . . .” Ask for supporting articles or citations that support their position. I’d prefer to see the cards my adversary is holding so that I can best prepare a course that will most benefit my client.

There must be dozens of other helpful tips, and I’d love you to share yours with me. I’ll leave you with this broad principle. Consider your own reputation and comport yourself in a way that does nothing but enhance it. Be the voice of reason, particularly when in an adversarial situation. How can it be any better than to be well regarded by the person with whom you are having a dispute? Be firm, but be willing to be wrong if indeed you are. My standard line when defending a Realtor® in litigation is to say something to the affect that if you are right I will be more than happy to help you reach a fair resolution and get the funds to which you are deserving; on the other hand, I need a factual basis by which you conclude my client’s liability.” If my client has committed a wrong, I’d rather have a dispassionate opposing counsel who is willing to discount the loss in exchange for a prompt resolution. When my Realtor® client has beat me to the punch and has ranted and raved at the attorney . . . well my chances are way less than otherwise.

A Listing Agent’s Right to See your Buyer Agency Contract

Buyer-agency-contractBy James L. Goldsmith, Esq.

Does a listing agent have a right to see your buyer agency contract? At the moment, I can’t think of a good reason! It is not prerequisite to your being paid a cooperating commission. Your entitlement to that is wholly dependent upon whether you are the procuring cause of the sale. The terms of cooperation, established by your local MLS, make that clear. It is NAR’s policy, applicable to Realtor owned multi-list systems, that the only prerequisite to a fee is procuring cause.

The Real Estate Licensing and Registration Act (RELRA) provides that a licensee may not perform a service for a consumer for a . . . commission . . . paid buyer on behalf of the consumer unless the nature of the service and the fee to be charged are set forth in a written agreement between the broker and the consumer that is signed by the consumer. See my article entitled “Buyer agency contracts: When?” recently published by your local association.

As noted in the above-referenced article, services may be performed before the employment contract is signed ” . . . but the licensee is not entitled to recover a fee, commission or other valuable consideration in the absence of such a signed contract.” So, can a listing broker demand to see a buyer agency contract of the broker whose office procured a buyer as prerequisite to payment? I suggest that the answer is no, and I am not aware of any case that has held to the contrary. That a buyer agent is to have a written contract with a consumer in order to be paid is clear from the language quoted from RELRA. But is also flies in the face of the contract establishing payment terms between listing broker and selling broker that are established by the multi-list. It’s only predicate is that the buyer agent procured the buyer.

I have no doubt that a buyer agent would not succeed in recovering a commission to be paid directly by the buyer in the absence of a written contract signed by the buyer. So why is a listing broker obligated to pay the fee offered in the MLS to a buyer agent without a contract? Because the relationship between the listing and selling agents are established by the terms of the MLS where there is but one prerequisite to payment: procuring cause.

It is possible then for a selling agent to succeed in Realtor® arbitration against the listing broker who promised to pay a fee, but also face disciplinary charges for not having a written buyer agency contract. Disciplinary charges are handled by the Bureau of Professional and Occupational Affairs which is concerned primarily with the enforcement of RELRA and the Rules and Regulations of the Commission and not interested in terms of cooperation as provided by the multi-list service. Further, in a direct suit filed by a selling broker against a buyer, the broker’s efforts would fail because of lack of a signed contract.

The question of whether a listing broker can demand to see a buyer agent’s contract should be irrelevant in a world where agency contracts are executed at the beginning of the relationship. No buyer agent should find himself or herself without a contract when an agreement of sale is executed much less when settlement occurs. Yet, it happens.

So, can a listing broker ever demand to see the buyer agency contract? Perhaps there is a situation that would justify it, but none come to mind at this writing. Can buyer agents demand to see a listing broker’s contract? It never happens, but then again it’s a rarity for someone to take a listing without also having a signed listing contract. By the way, if the norm is to get a listing contract at the beginning of the relationship, why doesn’t that hold true for buyer agency contracts?

Communicating Acceptance: When is a Binding Agreement of Sale Officially Formed?

By: James L. Goldsmith, Esquire

Many believe that an Agreement of Sale is effective the moment both parties sign it. It can be, when the parties are in the same room to witness the others’ signing. More often, however, the parties review agreements at separate locations and without knowing what the other side will do. Imagine that a buyer signs an agreement before bed and sets it on her nightstand, only to awaken at 3 a.m. so fearful of homeownership that she tears up the document. Was there ever an agreement? The answer is, like most legal answers, it depends.

The general rule is that a contract is effective when both parties agree (i.e., sign the Agreement of Sale) AND acceptance is communicated to the offering party. If both parties sign the contract in the same room and at the same time, then acceptance would be communicated simultaneously with the signing of the document. In other cases, where acceptance is not as clear, an additional step to communicate the acceptance may be required.

For a real estate Agreement of Sale, the best method of acceptance is by returning the signed Agreement of Sale to the offeror. The PAR Agreement of Sale states that “return of this agreement…bearing the signatures of all parties, constitutes acceptance by the parties.” The PAR agreement does not, however, rule out other methods of acceptance. Therefore, there are other means of acceptance that could be used and deemed appropriate by a court, such as acceptance by a writing, verbal acknowledgement or conduct.

Acceptance by some other writing.

Acceptance can be made in writing without returning the actual agreement of sale to the offeror. For example, if after signing the agreement, a seller texts a buyer that he signed and accepted the agreement, the buyer would have the better argument that acceptance was communicated. Though, if there were a dispute, she could face other issues, such as assuring that the text messages get admitted into evidence, based on authentication and other evidentiary rules.

Long story short: It’s possible, but it’s unreliable and a bad idea to rely on any writing other than the Agreement of Sale itself as means of communicating acceptance of an agreement.

Oral acceptance.

Communicating acceptance orally is less reliable than by writing. To guard against the uncertainties of oral agreements, Pennsylvania has a statute of frauds that requires agreements for the sale of real estate to be evidenced by a writing. The writing does not necessarily need to be a contract, but it must include material provisions and be signed by the party to be bound. A verbal acceptance can establish a valid contract, but there would have to also be some other writing signed by the party now refusing to abide by the contract before a court will enforce it.

Acceptance by conduct.

Other than accepting an agreement in the presence of both parties, acceptance could also be accomplished in very limited circumstances through other types of conduct. For example, what if Brooke Buyer delivered her signed offer with a $5,000 deposit check? If the seller endorses and deposits the check into his bank account, but never produces a signed Agreement of Sale, the buyer would have a strong argument that the seller accepted the agreement just via the check endorsement. Depending on the clarity of the buyer’s offer, just this signature and deposit could be sufficient for a court to find that all material terms of the sale were in writing.

Although this is a stronger argument for the buyer, this scenario still leaves uncertainty, which could result in added expense, litigation and a potentially losing result.

So, what should you do? Ultimately, the above examples are outliers, and the ordinary and recommended method of acceptance is in writing through delivery of a signed Agreement of Sale. If a seller signs the agreement and delivers it back to a buyer, the moment that the buyer receives the signed agreement is the moment the effective contract is created. This is the moment when the seller communicates his acceptance. The Pennsylvania Supreme Court confirmed this rule in Groskin v. Bookmeyer when it held that the “[offeree’s] mere signing of his own copy of the agreement, without any attempt to notify [the offeror] that he had done so, did not constitute an acceptance of [the] offer.”

Add in agents.

As a general rule, we can treat an agent as the actual person being represented. This means that communicating acceptance to the other party’s agent is communicating acceptance to the other party. Likewise, communicating acceptance to an individual’s own agent, is communicating acceptance to themselves (i.e., nobody). In sum, until the agent communicates the acceptance to the other party -— assuming the agent has authority to do so -— no agreement is created.

There are three major takeaways from this discussion. First, agents should advise, and be advised, that until a signed Agreement of Sale by both parties is in their physical possession, there may not be a binding agreement and the transaction should be treated accordingly. Second, oral communication of acceptance (“We have a deal”) creates uncertainty and has been the subject of repeated litigation. It is far better to indicate that the terms look good, but state that there is no deal until the agreement is signed and returned. Finally, if there is a question as to whether an agreement was formed without having the physical agreement of the sale in hand, the answer is likely fact intensive, and parties should be advised to seek counsel.

Copyright © James L. Goldsmith, Esquire, 2018
All Rights Reserved

Condemnation of Property…What are My Rights?

By: Mark S. Silver, Esq.

Condemnation Of Property

The Department of Transportation, school districts, sewer and water authorities, certain pipeline companies, some electric companies, and various other government agencies have the power to acquire private property for public purpose. Without such power, many important public works projects that provide benefits to us all could not be undertaken. Pursuant to the Constitution, a property owner is entitled to just compensation for the taking of his private property.

Attorneys with experience in eminent domain (condemnation for public purpose) and qualified real estate appraisers can provide valuable assistance to a property owner facing condemnation. Sometimes the offer made to the property owner by the acquiring entity is fair; sometimes it is not. In determining what is just compensation, the attorney and appraiser will evaluate whether the taking has resulted in a restriction on the use of the property following construction, as well as whether the taking has reduced or eliminated more profitable uses of the property.

Early involvement by professionals on behalf of the property owner is critical to establish and to document a claim for compensation, as well as to negotiate the most favorable terms of the taking for the property owner. For example, it is possible to negotiate a 60″ depth, rather than the standard 48″ depth, for a pipeline easement that crosses cultivated fields. It is also possible to relocate easements, as well as access routes to them, to areas that create the least functional disturbance to the land owner. Further, additional protections to the property owner that can be negotiated include: tree removal or storage of usable timber, separation of topsoil cover from sub-grade material, and separation of rock in excess of a specific diameter from the backfill material so as to enhance crop development after the installation is complete.

Property owners can contest the condemnation of their property on several bases, such as the lack of a legitimate public purpose, the lack of authority to condemn and failure of the condemning authority to follow required legal procedures. Yet, in most instances, a property owner’s money and efforts are better spent on maximizing the just compensation that is paid for the condemned property.

Owners of agricultural property have unique protections in certain circumstances, especially if the property is enrolled in an agricultural security area that has been approved by the local municipality. If applicable, the condemnor, before filing a condemnation action, must obtain a determination from the Agricultural Land Condemnation Approval Board (ALCAB) that there is no alternative to the taking of this particular agricultural property. The condemnor can have a difficult time satisfying that standard.

The law in Pennsylvania includes a provision that the condemning authority, in most instances, is obligated to reimburse the property owner up to a maximum of $4,000 toward professional fees. This can assist to offset initial expenses incurred to obtain an initial review of the matter on behalf of the property owner.

Can the Department of Revenue Collect Realty Transfer Taxes More than Once on the Same Sale?

by Attorney Paula J. Leicht Esq.

Paying Double Reality Taxes

A: Yes.

The Department of Revenue takes the position that an assignment of an executed agreement of sale for real property may result in double realty transfer tax because it considers the assignment a separate transaction involving the conveyance of real estate.

When a buyer buys a commercial property, but does not have a business entity formed, the buyer signs the agreement as an individual with the intention of assigning the agreement to a new business entity after the buyer is satisfied that all conditions are met.

Beware: the Department of Revenue will say that there are two transactions: the agreement of sale with the individual buyer and the assignment to the new business entity.

Ways to avoid double taxation of realty transfer tax are 1) create the business entity from the beginning in order to sign the agreement of sale; 2) revoke the original agreement of sale and enter into a new agreement after the new business entity is created; or 3) enter into a novation agreement.

Winter Brings Familiar Dangers

by Paul J. Bruder, Jr.

It’s that time of year again. As the weather turns colder and air conditioners give way to furnaces, homeowners call their heating oil providers and say “fill’er up.” Well over 100,000 homeowners in Pennsylvania, approximately 15,000-17,000 in Dauphin County alone, heat their homes with oil, meaning that their basements are home to large (usually 150 gallons or more) heating oil tanks.

Despite sometimes high costs, oil heat remains an efficient, clean and safe way to heat your home. Dangers lurk, however, though not so much with regard to the safety of a properly functioning system. Rather, the dangers and hazards associated with home heating oil often result from problems during the filling of those tanks.

One source of potential danger is the absence or failure of a “whistle.” Typically, during filling of a tank from outside the home through a fill pipe, a second vent pipe will make a whistling sound while air in the tank is displaced by oil and escapes through the vent pipe. As the tank nears capacity, the whistling slows, then stops as the last of the tank’s capacity is filled with oil. At this point, the delivery person knows to stop pumping oil. Problems occur where there is another opening in the tank that is not properly plugged. (Such openings are usually necessary to allow flexibility in installation of the tank). Where such openings exist and are not plugged, displaced air rushes out through that larger opening, without making any noise audible to the tank-filler outside. This can, and often does, lead to an overfill of the tank.

Other sources of danger are existing fill pipes that are no longer in use because the present, or even past, homeowner converted to another source of heat and had the oil tank removed. Should a neighbor with the same numerical address on a different street call for oil, and that address be misread or otherwise misunderstood, a significant amount of heating oil could be pumped directly into a home’s basement.

The above scenarios can, and do, happen more than you would think – dozens of times in the Commonwealth each year. When it does, the next step is crucial. Often, the oil company will simply offer to clean up the spilled oil, apologize and go away. The homeowner is then left with a home inundated with petroleum fumes that soak into the curtains, the carpet, the furniture and the family’s clothes. These fumes can cause headaches and nausea, affect your ability to sleep, and potentially cause greater illness.

In addition, the spilled oil does not take long to soak into the soil, even if the basement has a wooden or concrete floor. Once in the soil, contaminants can leach into the groundwater, which could then affect the quality of well water or flow into nearby streams. Under Pennsylvania law, any pollution of a water of the Commonwealth is illegal, and if the source of the contamination is your property, you are responsible for cleaning it up.

What can you do to make sure this doesn’t happen to you? First and foremost, if your home does not have a home heating oil tank, make sure your home does not have an oil intake or fill pipe. If it does, have it removed immediately by a qualified contractor, or take steps to ensure that it is otherwise disabled. Tape it up tight, put a lock on the cap, hang a sign on it that says “Do not put oil in here!” Anything to alert an oil delivery company that the pipe is not to be used.
If you do use heating oil, have the tank inspected by a qualified professional at the start of each winter season. At the very least, look the tank over yourself to make sure your tank has no openings from which oil can escape. Try to schedule oil deliveries when you will be home so that if there is an overfill, it can be stopped immediately.

If you have an overfill event like the one’s described above, don’t panic. Call the oil delivery company immediately and explain what happened. Next, contact your homeowner’s insurance carrier and consult your homeowner’s policy. Have an insurance representative come to the house immediately to observe conditions as soon as possible, preferably before the oil company begins clean-up. If you wish, you can contact a lawyer to help guide you through the maze of Department of Environmental Protection regulatory requirements, the often confusing provisions of your homeowner’s policy, and the complex system of potential liability for clean-up of the spill. An attorney can also help you select an environmental consultant capable of overseeing the clean-up to make sure your home and the environment are safe. Remember, the Department of Environmental Protection is concerned only with keeping the environment clean, not who foots the bill. Trying to deal with the oil company or your insurance company yourself could wind up costing you, the homeowner, a significant portion of the clean-up costs. A capable representative can protect your rights to get your life back to normal.

You can visit the Department of Environmental Protection’s website at www.dep.state.pa.us for additional information regarding clean-up requirements, or feel free to contact Mr. Bruder directly for more information about our firm and its available services.

It’s Not Nice to Regulate Mother Nature

by Paul J. Bruder, Jr.

“Man proposes, God disposes.” This catchy saying references the often strange ways that man’s best laid plans can be changed by the whim of a Higher Power. In the realm of land development in the state of New Jersey, a new phrase was coined by a New Jersey appellate court: “God creates, man regulates”.

In Ginsberg Development Cos. v. Planning Board of the Township of Harrison, A-4162-06, (App. Div. Feb.
29, 2008), a New Jersey appellate court held, in an unpublished opinion, that a local planning board can require as a condition of land development approval that a developer provide individual deed notices as to the presence of naturally-occurring environmental conditions, such as levels of arsenic in excess of the New Jersey Department of Environmental Protection’s unrestricted soil use standard.

Just the Facts

In Ginsberg, the applicant submitted plans to develop 44 acres into 29 residential lots in the Township of Harrison, Gloucester County. Soil sampling showed evidence of naturally-occurring levels of arsenic which exceeded NJDEP’s unrestricted soil use standard of 20 parts per million on eight of the lots. While there was apparently an acknowledgement by the applicant that arsenic could cause severe health conditions, there was no information in the record regarding exposure to naturally-occurring exceedances. Arsenic is often found in soils at former fruit orchards, since arsenic is an ingredient in many popular pesticides, and most states require remediation of arsenic contamination caused by man. However, there is no requirement under New Jersey law to perform remediation of naturally-occurring arsenic or other contaminants.

Ginsberg agreed to fully-disclose the arsenic levels in homeowner association documents, but objected to the inclusion of this information in individual deeds of conveyance because of concerns about the initial or future marketability of the property. Nevertheless, the Planning Board included the following in its Resolution of Memorialization:

The [Harrison] Township Ordinance permits the Planning Board to consider remedies to address the public welfare concerns posed by an environmental issue. Although the Board may not be permitted to require remediation of the site when the NJDEP is not requiring same, considering the health risks of exposure to elemental arsenic, the Board determined that it is appropriate to require a disclosure in the deeds for each lot and a disclosure in the Homeowner’s association documents regarding the levels of naturally occurring arsenic for all lots affected by these elevated levels.

The applicant filed an action challenging this condition of the preliminary major subdivision approval, alleging that the condition was pre-empted by state environmental laws and “ultra vires” under the New Jersey Municipal Land Use Law. After the lower court affirmed the planning board’s action, the applicant argued on appeal that the Board’s condition was improper because deed notices are a form of remedial control under the New Jersey Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 et seq., but the Brownfield Act does not require remediation of contaminants where the exceedance was the result of regional natural background levels, and therefore the New Jersey legislature had pre-empted the field. Ginsberg also generally challenged the condition as beyond the powers granted to the Board under the Land Use Law.

The Decision

The court found that naturally-occurring exceedances do not constitute a release or “discharge” under the Brownfield Act or its implementing regulations, and the regulations require a “discharge” before remedial action is required. The court held, therefore, that the pre-emption doctrine should not apply because the Brownfield Act does not address such instances. The court also found that it was within the Board’s discretion to require a condition authorized by local ordinance, even if the Brownfield Act did apply to such exceedances, because the Act specifically permitted more stringent local requirements. The court also held that the condition of approval could not be construed to be remedial action because the deed notice requirements imposed on the applicant by the planning board were not as specific as the requirements that would be imposed by the Brownfield Act.

The court went on to state that the Land Use Law specifically requires local municipalities to consider the health, safety and welfare of their communities in adopting local zoning ordinances. Harrison Township maintains an ordinance which requires the performance and submission of:

such other studies, tests or environmental treatments and remedies as may be determined reasonable and necessary for the environmental safety and security of the site, including but not limited to a site investigation in accordance with N.J.A.C. 7:26E, cleanups or other remedies.

Harrison Twp. Ord. Ch. 107, § 107-1(15)(m)(2003).

The court noted that the applicant did not challenge whether the subdivision ordinance properly incorporated the provisions of the enabling ordinance, nor did the applicant challenge the ordinance on constitutional grounds. Specifically, the court stated: “The requirement that such a notice be included in each deed is a reasonable method to insure the information is in fact provided from developer to purchaser and to subsequent purchasers. Thus, the permissible governmental purpose of promoting the general health and welfare of its citizens would be served, and there is nothing in the record by which we can conclude that the Board’s action exceeded the powers delegated to it under the subdivision ordinance.”

How Does This Decision Affect Developers?

Because this is an unpublished decision of the appellate division, it is not controlling precedent. However, it provides ammunition for land use and planning boards to require notice of environmental conditions, even though such conditions may be naturally occurring, at properties through the recording of information relating to the condition, even though no physical remediation is required. Chances of this type of conditional approval becoming uniformly imposed is quite small in light of the factually intensive nature of the case and the existence of the local ordinance which allowed the Board to require “environmental treatments and remedies”. However, the court noted that constitutional issues and issues of whether the local ordinance failed to incorporate provisions of the enabling ordinance were not raised on appeal. As such, there is potential for future challenges in similar circumstances.

Stormwater Update –Is a “Rain Tax” Right For Your Municipality?

by Paul J. Bruder, Jr.

The potential for stormwater utility fees, or the creation of stormwater authorities in Pennsylvania, is real, and some municipalities have already put these measures in place. With increased federal and state concern over the health of the Chesapeake Bay and other impaired waters, and rising concerns over flooding, managing stormwater is becoming more complicated and expensive than ever. In this day and age, merely collecting stormwater and discharging it to the nearest receiving stream is not typically sufficient, particularly for more urbanized areas.

Federal and state authorities are pushing green infrastructure solutions and low-impact development, and the use of best management practices (BMP’s) to filter out pollutants that naturally accumulate in stormwater, in an effort to keep our waterways as clean as possible. However, funding these programs and infrastructure upgrades puts further strain on already lean local government budgets, prompting local government experts to look for new ways to generate revenue.

Stormwater user fees are seen by some as the most fair solution. Property owners are charged a fee based on the size of the property and the percentage of impervious cover (or some similar calculation). Thus, like other utility fees such as water and sanitary sewer, the amount of these fees will be based on the amount of demand a user places upon the system. All property owners who generate stormwater runoff from hard surfaces will pay a fee. This way, property owners have much more control over the amount of the fee they will be required to pay, and such a system provides an incentive for land owners and developers to come up with more creative ways to develop their property to minimize stormwater runoff and maximize on-site infiltration. This system would appear to be a much more equitable system than a standard property tax based upon property value.

The creation of stormwater authorities had been the subject of much legal debate. Many in the legal and local government communities (myself included) believe that the existing Municipality Authorities Act, 53 Pa.C.S.A. § 5601 et seq., already allows the creation of such authorities. However, without any court decisions ruling on this issue, many municipalities are wary of creating such authorities and then facing the prospect and expense of a legal challenge. During the 2011-12 legislative session, the Pennsylvania Senate passed a bill that would provide municipalities with express power to create these authorities; however, that bill was not passed into law during that session. Currently, two similar bills – Senate Bill 351 and House Bill 821 – are pending in various stages along the process, and some fine tuning may take place before a final bill reaches the Governor’s desk. There is optimism, however, that a bill providing some clarity on this issue will be signed into law this year.

As has been recognized in the consulting and legal communities, stormwater authorities, should they be created, are likely best organized at the watershed level. Stormwater knows no municipal boundary, so local governments that discharge stormwater to the same watershed need to work together in order to establish the most efficient system possible for managing stormwater and collecting any fees that are required. A county-wide approach may work as well, however it would seem that a watershed approach is more appropriate, given that impaired waters are defined by watershed as opposed to municipal boundaries.

Other funding options that have been batted around include separate fees on developers to compensate communities for things like inspections, plan reviews, and penalties for illicit discharges. While developers are an easy target, political backlash may prevent this from becoming a reality. Grants and low-interest loans are also available through many DEP and DCED programs, PennVest, and some federal programs as well. While these can be beneficial to getting things started with planning and design, they cannot be counted on to provide a steady stream of revenue sufficient to sustain a long-term stormwater management program.

Solutions to these problems – both from the environmental protection standpoint and the financing standpoint – are not easily achievable. However, difficult problems always require creative solutions, and the end result is often worth the effort.

The Tank Act and Indemnification Fund

by Paul J. Bruder, Jr.

The Underground Storage Tank Indemnification Fund (“USTIF” or the “Fund”) was established within the Storage Tank and Spill Prevention Act (the “Tank Act”). The USTIF is a special fund in the state treasury which consists of fees assessed by the Underground Storage Tank Indemnification Board to owners and operators of underground storage tanks. The seven member USTIF Board consists of the Insurance Commissioner and the Secretary of the Department of Environmental Protection (DEP), and five other members appointed by the Governor.

The USTIF is funded entirely by fees paid by owners/operators of storage tanks, fuel distributors and tank installers, based on factors specific to each business and the gallons delivered, tank capacity and tank removals/installations performed. Monies in the Fund are appropriated for the purpose of making payments to owners/operators of USTs who incur corrective action liability or for bodily injury or property damage caused by a release from a UST. Payments to eligible claimants are limited to actual reasonable and necessary costs of corrective action and to the amount of an award of damages by a court for bodily injury or property damage. Payable claims do not include the cost of upgrading, routine inspections, investigations or permit activities not associated with a release.

The Fund has a $1,500,000 limit per tank per occurrence and a $1,500,000 annual aggregate limit for each owner of 100 or less USTs. There is a $3,000,000 annual aggregate limit for owners of 101 or more USTs. Owners must pay a deductible in an amount not less than $5,000 per tank per occurrence for each tank that contributed to the release. If the release also results in an eligible claim for bodily injury or property damage, the owner must pay an additional deductible per tank per occurrence in an amount not less than $5,000 (in addition to the corrective action deductible).

Eligibility Requirements

In order to receive a payment from the USTIF, the claimant: must be the owner/operator of the tank which is the subject of the claim; must be current with the fees; must have a registered UST; must have a permit, if required; must demonstrate that the release that is the subject of the claim occurred after February 1, 1994; comply with the notification requirements set forth in DEP’s regulations at 25 Pa. Code 977.34 (relating to reporting claims to the USTIF within 60 days after confirmation of a release), and; cooperate with the USTIF in its eligibility determination process, claims investigation, the defense of any suit, the pursuit of a subrogation action, or other matters as requested. The USTIF Board and its third party administrator scrutinize each claim to ensure compliance with these requirements, and will deny any claim that does not strictly comply. We will analyze some of these requirements below.

Registration

Obviously, where a claimant has not properly registered the subject tank or paid the appropriate fees, then any claim will be summarily denied by the USTIF. In a transactional scenario, where a party purchases UST’s from another party, often there may be some uncertainty as to the eligibility requirements and whether the seller is in compliance with the basic eligibility requirements regarding registration and fees. In such a case, the purchasing party should investigate these matters prior to settling on the deal, and if the deal goes through, if the seller of the tanks has not complied with the eligibility requirements, the new owner should immediately contact DEP to have the tanks registered and permitted, and pay all outstanding fees. However, coverage is not afforded where the fees are paid after the discovery of contamination. If the previous owner never registered the tanks and the new owner becomes aware of the presence of tanks on the property, then the new owner must immediately register the tanks in accordance with Section 501 Tank Act and the DEP regulations. It is unlawful for any owner or operator to operate or use, in any way, any UST that has not been registered as required by the Tank Act. The owner must submit a form to the DEP to register each UST. Problems are more likely to arise when the previous owner (or an owner before the previous owner) registered the tanks and then failed to pay the annual fees to the Fund. In that case, the new owner, although he is an innocent party, is likely to receive a notice of delinquency from the DEP. In the worst case, there may have been a release from the USTs and the previous owner failed to follow the reporting requirements under the Act, which means that the new owner will be charged with the remediation costs. However, under Section 1311 of the Tank Act, the previous owner is presumed liable for any contamination or pollution that occurred when he owned the tanks. The new owner may file a private cause of action against the previous owner to recover costs and fees expended as a result of the pollution. DEP may also assess additional criminal and civil penalties against the previous owner for failure to comply with the Act.

Notice and Confirmation of Release

To receive payment from the Fund, the participant must notify the Fund within 60 days after the confirmation of release. An investigation of an indication of a release must be done no later than 7 days after the indication using one of the investigative procedures listed in the DEP regulations. If the procedure(s) indicate a release, then the release has been confirmed. Even if the investigation at the site is somewhat limited, as long as at least one of the listed procedures is used, then a confirmation of the release has occurred.

The regulations require confirmation of the release to trigger the reporting requirement, so actual knowledge is required that a release has been confirmed. The confirmation of a release is determined by considering the totality of the circumstances. Factors to consider could include contaminated soil, a hole in the line amidst corrosion, a pump behaving erratically, the product was under pressure in the line in normal operation, the consistent treatment of the release as confirmed, and the line did not hold pressure after repair which indicated that other escape holes existed in the line. The odor emanating from the soil, the visible vapors rising from the soil, and photo ionization detector soil screening results also are enough factors to confirm a release. It is not necessary to know the extent of the contamination in order to know that a release has occurred.

Once a release is confirmed, the reporting requirement is a prerequisite for eligibility which must be satisfied unless the untimeliness is excused. A delay will only be excused in extraordinary circumstances, including fraud, the breakdown in the administrative process, or non-negligent circumstances related to the insured, counsel, or a third party. The burden of proof falls on the claimant to demonstrate entitlement to payment of the claim.

In a 2005 USTIF Case, Harrisburg Jet Center/USTIF, UT04-08-025, 16 (2005), the claimant was ineligible for USTIF coverage because confirmation of the release was confirmed in October 2003 when the visible contamination was noted, the hole in the line was observed, the pump was behaving erratically, and other factors occurred to signal the release. Once one or more procedures were taken as listed in 25 Pa. Code § 245.304(b), the release was confirmed and there was no need to wait for the test results from a soil and groundwater sample analysis to know that there was a release. The delay in waiting for the analysis was not excused and the 60 day required time period for notification had passed by the time the claimant notified the USTIF of a potential claim on January 14, 2004.

In a 2006 USTIF case, Ashton Road Automotive, Inc./USTIF, UT04-06-065, 13 (2006), the claimant was also ineligible for USTIF coverage because the confirmation of the release occurred on August 13, 2003 when the site was excavated and an odor emanated from the soil, vapors were seen rising from the soil, and the PID soil screening results showed a high level of contamination. Since the claimant was present at the site on that date and these observations constituted a confirmation of the release, it was not appropriate to start calculating the 60 day reporting requirement by the date on which the claimant received the result of laboratory tests of the soil samples.

Establishing that Release Occurred After February 1, 1994

In order to claim eligibility for payment under the USTIF, the claimant must also demonstrate that the release occurred after February 1, 1994. The heavy burden of proof is on the claimant to provide substantial evidence that “it is more likely than not” that the release occurred after February 1, 1994. If the evidence is inconclusive whether the release occurred before or after 1994, the claimant has not met its burden of demonstrating eligibility for reimbursement.

It would appear from Pennsylvania case law that it is not necessary to prove beyond a reasonable doubt that the release occurred prior to February 1, 1994, but only to demonstrate to the Board’s satisfaction that the release occurred after that date. The Commonwealth Court of Pennsylvania has indicated that the claimant must show that it is “more likely than not” that the release occurred after February 1, 1994. Southeast Delco School District v. USTIF, 708 A.2d 881 (Pa. Cmwlth. Ct. 1998). The claimant must take affirmative action to demonstrate that the release occurred after 1994 and cannot simply attempt to rebut the evidence or methodologies of USTIF experts but must take his own steps to provide evidence that shows it is more likely that the leak occurred after February 1, 1994.

The USTIF has been very consistent over the years in the application of the eligibility requirements and seemingly very fair in its assessment of eligible claims. Strict adherence to the eligibility criterion is a must, and in conducting any commercial transaction involving potentially eligible storage tanks, these matters are best investigated during any due diligence period. Any uncertainties should be investigated by the buyer’s counsel or consultant and a verification with DEP and the USTIF as to the status of the tanks. There are no second chances with these eligibility requirements.

Myths Regarding Real Estate Transactions We Just Can’t Shake

By Jim Goldsmith, Esq.

There is a lot of fake news out there! And there is a lot of fake news about news that is claimed to be fake that isn’t fake. Here you will see a number of real estate transaction myths that just might be true, or not! Keep this article and one-by-one we will pick out the fake news from the real stuff. At the end of the list I’ve answered the first two questionable facts, so read on.

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