The Indiana Environmental Legal Action Statute (“ELA”) gives parties the right to bring an action against a person or entity that caused or contributed to a release of hazardous substances or petroleum into the environment.
When a landlord and tenant enter into a lease arrangement, environmental due diligence by each party is recommended prior to entering into the lease agreement in an effort to help identify any potential environmental liabilities that may exist at the time of the agreement.
In 2010, the Indiana Court of Appeals held in the Neal v. Cure decision that a landlord who neither caused or contributed to, or had knowledge of a release at the site, was not liable under the ELA. More recently, the Indiana Court of Appeals, relying on the 2010 decision, held in the JDN Properties v. VanMeter Enterprises decision that a landlord who had knowledge that its tenant’s use was causing contamination, could be held liable under the ELA. In the JDN Properties v. VanMeter Enterprises decision, the landlord did nothing to cease or address the contamination, then sold the property to a third party without disclosing the environmental issues with the site.
As such, just as a landlord may be held liable for personal injuries caused by hidden or concealed defects known to the landlord but unknown to the tenant and which the landlord fails to disclose, a landlord may be held liable under the ELA for contamination known to exist at the site that the landlord fails to disclose.
KDDK is experienced in the undertaking of assessments and prosecuting such pre-purchase/pre-lease environmental due diligence. For more information about such legal services or any related legal matter, please contact Monica Edwards at medwards@kddk.com or (812) 423-3183, or contact any member of the KDDK Environmental Law Practice Team.
Related Articles:
- Escaping Indiana Environmental Legal Actions
- Landlord Liability and Known Defects
- Tenants Beware: Follow EPA’s new guidance or succumb to environmental liabilities?
About the Author
Monica E. Edwards, a Partner at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, is a member of the KDDK business, environmental, intellectual property, and real estate law practice teams. Monica draws upon her scientific experience as a technical services chemist and prior environmental consultant in her practice of environmental law. Her background helps her assist clients in performing environmental due diligence, negotiating environmental settlement agreements, coordinating site clean-ups, prosecuting historical environmental insurance claims, and recovering environmental defense and indemnity costs.
Monica’s intellectual property experience includes the registration, assignment and renewal of trademarks and copyrights. She is also frequently involved with the licensing and defense of intellectual property and the negotiation of confidentiality agreements on clients’ behalf.
