[WSBAPT] Contaminated real property in an estate

Sun Aug 17 14:31:40 PDT 2014

http://www2.epa.gov/enforcement/finding-potentially-responsible-parties-pr
p

Eric,

The issue may very well arise between the beneficiary or the PR and the
government agency seeking a clean-up of the site. The EPA can scrutinize
everyone in the chain of title to determine who should bear the burden
(see above cite). This could be an uncomfortable experience for all
involved. I represented heirs to a possible superfund site in a probate
many years ago, and that is where I learned that superfund referred to the
assets of the Potentially Responsible Parties and not some fund the
government had set aside. The PRs in that case were very thorough in their
disclosure to the heirs; as I recall, all of the heirs disclaimed their
interests to the municipality in which the property was located, and the
property became a part of a much larger clean-up effort. 

Margaret 

Margaret L. Koch 
Smith and Koch 
PO Box O 
Vashon, WA 98070 
206-463-9491 
206-463-3405 (fax) 
vashonlaw at aol.com 

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-----Original Message-----
From: Eric Nelsen <Eric at sayrelawoffices.com>
To: wsbapt <wsbapt at lists.wsbarppt.com>
Sent: Sat, Aug 16, 2014 6:38 pm
Subject: RE: [WSBAPT] Contaminated real property in an estate

Sam may be right, but I think one also could argue that the PR's duty as
fiduciary does not extend to cleanup, so long as the hazard was not
actually deposited on the property during the PR's watch. One could
analogize to a deteriorated house: the PR has no duty to renovate the
house before selling, but only to get the best price consistent with
settling the estate "without loss." If the property was contaminated when
the decedent had it, the PR shouldn't have a duty to clean it up.

I would argue, however, that the PR should disclose the contamination to
the beneficiary, so the bene can at least make an informed decision about
whether to repudiate the gift.

PR could also sell the property with disclosure to buyers, get the best
price possible, and distribute cash. It would require some thinking
through how to insulate the Estate from liability (indemnity from Buyer?),
but I think that's often done for any seller of contaminated property.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com
<mailto:wsbapt-owner at lists.wsbarppt.com?> ] On Behalf Of Sam Furgason
Sent: Saturday, August 16, 2014 2:37 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [WSBAPT] Contaminated real property in an estate

The Personal Representative of an estate does not deal at arm’s length
with the beneficiaries, but is a fiduciary who owes the beneficiaries the
highest duty of good faith in all dealings. Any person who is in the chain
of title to real property which contains environmental hazards proscribed
by federal law may be held liable for the cleanup. The estate may owe a
duty to remove the contaminant(s) prior to distribution. Better research
it. 
S 

From:  <mailto:wsbapt-owner at lists.wsbarppt.com>
wsbapt-owner at lists.wsbarppt.com [mailto:wsbapt-owner at lists.wsbarppt.com]
On Behalf Of Sherry Bosse Lueders
Sent: Saturday, August 16, 2014 12:02 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Contaminated real property in an estate

Has anyone run across the following scenario? PR discovers real property
in an estate is contaminated. Does the PR have any duty to remove
contaminant from the property before transferring it to the beneficiary?
Is there even a duty to disclose the presence of the contamination to the
beneficiary, since no Form 17 would be required if PR were to sell the
real property? 

Thanks for your collective wisdom!

Best Regards,

Sherry Bosse Lueders | Of Counsel

Stacey L. Romberg, Attorney at Law
Telephone:  (206) 784-5305
Fax:  (206) 789-8103

Visit our website at http://staceyromberg.com/.

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