Unknown environmental problems are a far greater
source of loss to lenders than fire, vandalism, theft, or title risks. This
article examines the importance of environmental liability for all financial
institutions and investors that hold or invest in loans where real estate is
used as collateral.
by Richard Klepper and John A. Hannah
Environmental liability is a critical issue for all financial institutions
and investors that hold or invest in loans in which real estate is used as collateral.
Unknown environmental problems are a far greater source of loss to lenders than
fire, vandalism, theft, or title risks.
When a collateral property turns out to be contaminated, its value will plummet,
placing the lender at financial risk. In negotiating a workout scenario in the
event of a loan default, a lender may have a few options. It might choose to
foreclose and liquidate the contaminated property. In this case, because of
the reduced property value, the lender stands to recover as little as a fraction
of the loan balance.
Alternatively, the lender may foreclose on the property and clean up the
known contamination. Here, the lender ultimately still may not recover the loan
balance due to the combination of the cleanup costs and the potential that the
property's market value will remain reduced after the cleanup because of difficulty
selling a previously contaminated property.
Notwithstanding recent court cases and regulatory actions, lenders that take
control of collateral properties may incur substantial cleanup costs, third-party
damages, and legal fees if the property is contaminated. The main trigger for
liability is based on "participation in management control," i.e., oversight
of a business during a workout scenario. If a lender decides not to foreclose
on the property, it can try suing the borrower, but will probably have little
hope of recovering the loan value if the borrower has financial problems.
Lenders can reduce their environmental risks in several ways, including the
A Phase I assessment or environmental site assessment (ESA) involves an environmental
consultant evaluating a property without soil or groundwater samples. Phase
I assessments typically cost a few thousand dollars and are completed in 2 to
3 weeks. For many properties, a Phase I assessment will be sufficient to meet
the lender's due diligence. Unfortunately, however, these assessments generally
are conducted by junior consultants, involve only visual inspections, and have
high error rates. They could lead to incorrect evaluations of a site's environmental
During a Phase II assessment, the consultant completes a more extensive evaluation
of the site, which can include sampling of the soil and underlying groundwater.
Phase II assessments can be much more expensive and time-consuming than Phase
I assessments. The type of assessment done depends on several factors, including
the past and present uses of the property and any history of environmental problems
in the area.
Environmental assessment contracts typically include provisions to limit
the consultant's liability for failing to detect the contamination to the original
cost of the Phase I or Phase II. Also, the environmental assessment is a review
of a site at a point in time and not a prediction of a new condition that might
occur during the loan period caused by operations at the site. So, in the event
of a default, the lender may have to bear expected cleanup costs and environmental
damages during the foreclosure process or choose not to foreclose.
A lender may decide not to lend on properties that are in high-risk categories.
Unfortunately, this may prevent loan officers from being competitive with other
financial institutions in certain market areas. Further, denying loans to certain
classes of business may not fully protect the lender from borrowers who misrepresent
their business operations.
Some lenders require borrowers to sign indemnity agreements that spell out
the borrower's responsibilities if environmental contamination is found on the
collateral property. These agreements deal with issues including, but not limited
to, the following.
Indemnity agreements should also include a financial assurance mechanism
to ensure that the borrower has adequate resources to cover future environmental
claims. This may take the form of escrows, reserve amounts, or letters of credit.
Each mechanism has its drawbacks. Escrows can be difficult to administer,
and small or limited liability companies may have limited funds to purchase
a letter of credit or to place into escrow or reserve accounts. In addition,
the lender and borrower may disagree about the length of time the asset should
be held in reserve before it is released or returned.
A lender can protect itself by having the borrower purchase an environmental
liability policy, which is more widely called a "pollution legal liability policy."
This policy provides coverage for a variety of exposures, including the following.
For lenders, the drawbacks to this type of protection are as follows.
The lender may not be aware of a change to the policy, including cancellation,
after the policy inception. (In order to be protected, a lender must be named
as an additional insured.)
Lender liability environmental insurance policies are being used by lenders
as a lower-cost substitute for, and supplement to, traditional environmental
due diligence. Lender liability insurance can protect lenders for unknown or
undisclosed environmental conditions, as well as for conditions disclosed by
a Phase I assessment, provided those disclosures do not represent policy coverage
exceptions. Lender liability insurance also provides coverage against new environmental
conditions that may appear during the loan term.
There are two types of lender liability policies.
Both types of policies require borrower default and the existence of a pollution
condition covered by the policy before a claim is paid. When either policy pays
for the outstanding loan balance, it will also include any accrued interest
from the date of default and any related outstanding obligations.
Lender liability policies provide coverage for losses arising from a default
by a borrower that are accompanied by a pollution condition on a commercial
real estate loan secured by an insured property. They will pay the lesser of
either the outstanding balance, in which case the insurer will indemnify the
insured, or cleanup costs, in which case the insurer will pay on behalf of the
insured. For this coverage to apply, onsite pollution conditions must be discovered
by the insured during the policy period. However, preexisting conditions can
be included by endorsement if there is a responsible party actively cleaning
The policy also pays for losses that the insured becomes legally obliged
to pay as a result of claims made against the insured and reported to the insurer
during the policy period. The losses covered under the policy include bodily
injury, property damage, or cleanup costs resulting from onsite or offsite pollution
conditions. In addition, the policy provides legal defense coverage for the
lender whether the property is in possession of the lender or not.
The lender liability policy can be written on a single-site or on a portfolio
basis. The portfolio policy may be underwritten on a business segment, type
of loan, a portfolio acquired from another lender, or a block of properties
that encompass loans with the largest risk. Lenders can choose any criteria
they feel are appropriate.
The benefits of the lender liability policy include the following.
The lender liability policy protects the collateral value of each and every
property insured against unforeseen environmental conditions. It allows lenders
to foreclose on contaminated property they might otherwise not foreclose on
because the policy would pay the cleanup costs or the loan balance, whichever
is less. If the insurer pays the cleanup costs, the lender gets the collateral
in the form of a clean, marketable property. If the insurer pays the loan balance,
the lender receives collateral back in the form of money.
The next article in this series will focus on environmental insurance as
it relates to exposures of owners, developers, and contractors associated with
Brownfield redevelopment in the United States.
Klepper has been part of the Marsh Environmental Resource Group since
1998, working with pollution liability, cost overrun, secured creditor liability,
and contractor's pollution liability coverage. He has worked on a broad range
of business classes, including engineers, contractors, manufacturers, landfills,
real estate, and lenders. Previously, Mr. Klepper worked for the Marsh Casualty
Department for 14 years. He received a bachelor of science degree in Actuarial
Science from the College of Insurance in 1988. He can be reached at
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