Law Times

PAGE 12 FOCUS Commercial real estate Environmental problems can leave clients liable W BY DARYL-LYNN CARLSON For Law Times ith the increasing focus on the envi- ronment, the pur- chase of a property for com- mercial purposes has many potential problems. Lawyers, therefore, must ensure that their client has taken all means to ensure the property has no prospective liabili- ties related to environmental compliance. In some instances, lawyers will go to the property to see what their client is purchas- ing. Bruce Marks, a lawyer with Marks & Marks LLP in Ot- tawa, practises both civil liti- gation and commercial law. He says there are many issues to consider for a client who's purchasing a commercial property. According to Marks, minimizing the client's li- ability is the primary issue when it comes to making sure the property complies with environmental regula- tions. "It's important to make sure the client's property complies with the envi- ronmental bylaws as this is a huge concern," he says. "Th e lawyers basically ad- vise the client to make sure they get title and the other issue they deal with is mini- mizing the risk of any po- tential liability." He notes it's often best to commission a survey of both the client's prospective property and the neighbour- ing land to make sure there are no pollutants. "One thing that concerns lawyers today is "If there are surround- ing businesses, you have to make sure they aren't going to be harmed by the client's business or the neighbour- ing businesses won't harm the client's property. "And if you do an en- 'If the property is polluted, that is a very significant consideration,' says Steven Pearlstein. environmental issues if the cli- ent is buying a business," says Marks. vironmental search on the property, it may be worth- while to look around at the surrounding properties to see what they're doing also to make sure there isn't any leaching happening from the properties beside you that will cause contamina- tion for the property. If there are some pollutants on the property, you have to know where they are coming from." As a result, it can be help- ful to commission a survey for the neighbouring proper- ties, especially if the business is in an industrial area, in or- der to fi nd out if there are any pollutants leaching onto the client's land. Th ere are separate mu- nicipal bylaws that the cli- ent will have to comply with. At the same time, Ontario's Environmental Protection Act prohibits any discharge of contaminants. Th e act, which addresses all commer- cial transactions, has the au- thority to establish liability for any pollutant and requires reporting toxins to the Min- istry of the Environment and cleaning them up in a timely fashion. Th e act grants the ministry broad powers to deal with the discharge of con- taminants that cause negative eff ects. "Th e responsibility of the lawyer is to ensure the client gets title to the property they want, and it can be extremely complicated under the laws," says Marks. "It's all about making sure the HELP YOUR CLIENTS TAKE CHARGE OF THEIR FINANCIAL FUTURE client can purchase the property they want." Steven Pearlstein of Minden NEW EDITION WEALTH PLANNING STRATEGIES FOR CANADIANS 2012 CHRISTINE VAN CAUWENBERGHE Your clients are at different stages in their lives and they rely on you to give them the right financial and tax advice. How can you be ready with the right answers for the wide variety of life situations that you will encounter? Wealth Planning Strategies for Canadians 2012 is the answer. This convenient resource is organized by life stage – so you are ready with quick answers as soon as your client walks through the door. NEW IN THE 2012 EDITION • Further explanation of the various planning strategies • All relevant changes to the provincial and federal tax, estates and family property legislation • Up-to-date tax rates, tax credits and social assistance rates ORDER # 983592-62353 $60 Softcover July 2011 approx. 720 pages Annual volumes supplied on standing order subscription 978-0-7798-3592-8 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. Gross LLP in Toronto agrees that the compliance issue with both the act and municipal bylaws can add much com- plexity when assisting a client with purchasing an industrial property. He acknowdges that under both the provincial act and municipal bylaws, there's much work that a lawyer has to do in order to facilitate the purchase. "If the property is pollut- ed, that is a very signifi cant consideration," he says. "And there is also the question of whether any neighbours will object to the use of the prop- erty once it is cleaned up and established." As a result, Pearlstein agrees that the client should com- mission a survey of the neigh- bourhood to assess what's in the area. He notes he'd advise a cli- ent not to purchase a contami- nated property. In fact, he re- cently had a client who bought a property for a waste transfer site, which is essentially a re- cycling operation. He advised the client to retain both an architect and a professional land-use planner to assist with the project and ensure compli- ance with provincial and mu- nicipal regulations. "You have all the commer- AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 cial stuff you would usually do, but with industrial lands, there are two other consider- ations, which are ensuring the client complies with pollution standards and any other by- laws, that can seem like nui- sances," says Pearlstein. "It is not easy to do these types of purchases because there are a lot of details to ac- knowledge in order to be cer- tain the client is free and clear of any liabilities." www.lawtimesnews.com OCTOBER 31, 2011 • LAW TIMES

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