DOSSIER · PROP

Development & Environmental Risk

Contamination, water, entitlements, and payment security on projects and land transfers.

Brief stack

In this dossier

PROP-05 · 01

Environmental Liability in Property Transfers: CERCLA and the Defences

9 MIN · PROP

Buying contaminated land can make the buyer liable for cleanup it did nothing to cause. This brief sets out how that happens, which federal defences exist, and what each one costs to keep.

CERCLA liability is strict, joint and several, and retroactive: a current owner can be held responsible for contamination caused entirely by someone else, decades earlier.
The bona fide prospective purchaser, innocent landowner, and contiguous property owner defences all require All Appropriate Inquiries completed before acquisition — never afterwards.
Each defence carries continuing obligations after closing. Ignoring land-use restrictions or refusing site access can forfeit a status that was validly earned at purchase.

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PROP-06 · 02

Water Rights and Drainage Disputes Between Neighbouring Owners

8 MIN · PROP

Two different fights hide under the word water: who may use it, and who must accept it when it runs downhill. The governing rule is state law, and it changes at the state line.

Most western states allocate water by prior appropriation — first in time, first in right, conditioned on continued beneficial use — while most eastern states apply riparian doctrine.
Groundwater runs on its own doctrines, which include rule of capture, reasonable use, correlative rights, and appropriation, and often differ from the surface rule in the same state.
Unwanted surface drainage follows one of three rules: common enemy, civil law, or reasonable use, and many states apply a modified version of whichever they nominally follow.

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PROP-08 · 03

Payment Bonds and Miller Act Claims on Public Projects

8 MIN · PROP

Public property cannot be liened, so the payment bond is the unpaid contractor's security. This brief sets out who it covers, the two deadlines that control, and where state versions diverge.

Federal property cannot be encumbered by a mechanics' lien, so the Miller Act payment bond is the substitute security for those who furnish labour or materials.
A claimant without a direct contract with the prime must give written notice within 90 days of its last labour or material, or the bond claim is lost.
Every Miller Act suit must be filed within one year of the claimant's last labour or material, in the federal district where the contract was performed.

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PROP-10 · 04

Development Agreements, Exactions, and Impact Fees

9 MIN · PROP

Approval conditions are where most of a project's cost is set. This brief separates what a local government may lawfully require from what a developer agrees to buy peace.

Approval conditions fall into three families — dedications of land, required off-site improvements, and money — and each is tested slightly differently.
A condition must have an essential nexus to a legitimate government interest and be roughly proportional to the project's actual impact, on an individualised assessment.
The Supreme Court held in 2024 that this scrutiny is not avoided merely because a fee is imposed by legislation rather than by an official's discretion.

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