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26 Prac. Real Est. Law. 3 (2010)

handle is hein.ali/prel0026 and id is 1 raw text is: The Practical Real Estate Lawyer volume 26 I number 1 | january 2010 Common Law Approaches To Non-Disclosure/ Limited Disclosure Of Environmental Liabilities Sharon M. Mattox 9 There is nothing new about the need to make environmental disclosures. And a well-known problem is that sellers have different amounts of information, and buyers have different information needs. It is crucial to strike the right balance between these things. But what can a buyer do if that balance isn't achieved, and it suffers some harm as a result? One possibility is to pursue common law remedies. In this article, Sharon M. Mattox reviews the seller's duty to disclose (includ- ing the scope of the duty, case law on both sides of the duty, the duty to disclose nearby hazards, and legislatively required disclosures); negligent misrepresentation (basic elements, judicial reluctance to find negligent misrepresentation, limits on the cause of action); as is clauses (no defense to CERCLA claims and generally ineffective against hazardous waste claims, and how they intersect with inspection restriction provisions); intentional or fraudulent misrepresentation (reasonable reliance, defense to foreclosure, fraud actions, rescission, disclosure of known future conditions); the impact of constructive knowledge; and contractual provisions that can provide a basis for relief for the buyer. The Uninsured Risks Of Development Raymond S. Iwamoto 25 The architect has insurance. The contractor has insurance. So what can go wrong? More than you might guess. Just because there is insurance does not mean that there will be coverage, and if that possibility is lurking in the background, things can get very troublesome when something goes wrong. A frequently misunderstood point is that defective design and construction is generally not covered. In this article, Raymond S. Iwamoto discusses the most common types of policies and their coverages, the economic loss doctrine and how its application restricts coverage, how to identify such economic losses, privity requirements in the application of the doctrine, exceptions to the rule, understanding how the courts have applied the economic loss rule in the insurance context, the provisions of the typical CGL policy and common exclusions, and the architect's errors and omissions policy. Negotiated Form Of Landlord's Consent To Sublease (With Annotations) Virginia P. Croudace 45 Commercial real estate is going through a bad period and nobody really knows if or how much worse things might get. Against this backdrop is a situation made more difficult for commercial landlords: the need to meet ongoing obligations. This has resulted in tenants pushing for concessions, and this can extend to lease negotiations. One topic of particular interest to tenants is the right to sublease the premises. In this article, Virginia P. Croudace presents a negotiated form of landlord's consent to sublease. The form takes as its starting point a negotiation based on a standard commercial lease with a typically restrictive clause addressing subleases. The consent agreement presented in this article demonstrates through strikethroughs and additions the terms that a typical landlord and tenant would respectively want, and covers representations, warranties, and covenants; conditions to Master Lessor's consent; effect of the sublease and of the Master Lessor's Consent or further actions; assignment of rents; and other miscellaneous provisions. The Art Of Reviewing A Leasehold Title Insurance Commitment Mark Morfopoulos 57 During the course of negotiating a lease, a tenant is not likely to wonder about the landlord's title to the property. But if the landlord does not have valid title, non-disturbance protection won't be of much help. If the tenant wants to avoid that risk, it should get leasehold insurance. In reviewing its insurance, the tenant should scrutinize the initial title insurance commitment, including schedules A, B, and any endorsements of typical policies. In this article, Mark Morfopoulos analyzes the provisions of the 2006 ALTA Owner's Policy, including the amount of insurance, interest in the land covered by the policy, title to the estate in the land, taxes and assessments, survey exceptions, mortgages and other security agreements, covenants, restrictions, easement agreements, declarations, and leasehold title endorsements. Groundbreakers 5 To purchase the online version of this issue, go to www.ali-aba.organd click on Publications. Back issues, individual articles, and forms are also available there.

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