Considerations for Connecticut’s New Environmental Cleanup Rules
Connecticut is transitioning to a new approach to environmental cleanup and property transactions. The Release-Based Cleanup Regulations (RBCRs) will replace the Transfer Act[1], which impacted property sales and redevelopment. Effective March 1, 2026, this shift seeks to align Connecticut with other states’ practices and may create opportunities and challenges for property owners, developers, and environmental professionals.
For nearly 40 years, the Transfer Act linked environmental inspections and cleanups to property transfers. While well-intentioned, the system created barriers and could delay transactions or deter sales. As properties languished under the weight of complex regulations, contamination issues frequently went unaddressed. A 2019 study examined the economic effects, noting potential impacts on employment and state and local revenue between 2014-2018.[2]
The RBCRs aim to flip this script by focusing on contamination as it is discovered, rather than tying remediation to property sales. By doing so, the new rules seek to encourage proactive cleanup while freeing up properties for timely transactions.
Changes Under the RBCRs
Under the new rules, owners must report contamination upon discovery and adhere to specific cleanup timelines. This shift could change the landscape of Connecticut property transactions, particularly in areas with historical contamination, like urban and coastal sites.
For buyers, the rules may offer greater flexibility. Inspections are no longer mandatory before a sale, which may expedite some transactions. However, this freedom comes with heightened risk. Buyers should consider the potential liabilities of purchasing contaminated properties, especially without pre-transaction inspections, and consider clearly defining environmental responsibilities in sale agreements.
The RBCRs also introduce new allowances, such as thresholds for minor contamination and exemptions for incidental releases. For example, contamination from routine roadwork or utility projects may no longer trigger immediate regulatory action. Similarly, single-family homeowners are exempt, but landlords of multifamily properties face stricter obligations regarding tenant safety.
For urban properties, which often face environmental challenges, there may be renewed interest under the RBCRs. The Transfer Act’s soil removal requirements, which mandated replacing four feet of soil in contaminated areas, could make redevelopment cost prohibitive. The new regulations provide more flexible remediation options, which may enable developers to manage contamination without excessive costs.
Possible Regional Implications of Connecticut’s Regulatory Shift
Connecticut’s transition from the Transfer Act to Release-Based Cleanup Regulations (RBCRs) exemplifies a shift toward decoupling environmental remediation from property transactions, a model that may influence regulatory frameworks in neighboring states. New Jersey’s Site Remediation Reform Act (SRRA) already reflects a release-based approach by emphasizing site-specific cleanup responsibilities, but the RBCRs may further encourage New Jersey to refine its existing policies. The broader principles underlying the RBCRs—streamlining remediation and balancing environmental and economic priorities—may serve as a model for other states in the region as they consider reforms to improve efficiency in addressing historical contamination.
[1] Connecticut General Statutes §§ 22a-134 through 22a-134e
[2] Connecticut Economic Resource Center, Study on the Impact of the Transfer Act (2019) (finding the Act caused the loss of approximately 7,000 jobs and $178 million in tax revenue from 2014 to 2018), available at Hartford Business Journal.
Who Regulates Residential Mortgage Trigger Leads?
In a bit of a surprise development at the end of 2024, the United States Senate passed the Homebuyers Privacy Protection Act, which amends the Fair Credit Reporting Act (FCRA) to include specific restrictions on the use of trigger leads in the residential mortgage lending space. While industry groups applauded the Senate’s passage of the act, the United States House of Representatives has not passed corresponding legislation, so the act is not currently in effect. Regardless, the act draws scrutiny on what many view as an annoying and potentially abusive practice – mortgage lenders’ excessive use of trigger leads.
A trigger lead generally refers to information a consumer reporting agency (CRA) compiles on a consumer based on the consumer’s application of credit in a particular credit transaction. The FCRA allows CRAs to create these consumer reports without the express consent of the consumer, meaning the consumer does not initiate the creation of a trigger lead. Typically, the consumer report is then sold to a third-party lender that uses it to solicit the consumer for comparable loan products.
Proponents argue that trigger leads benefit consumers by promoting competition amongst lenders and potentially resulting in the consumer receiving more favorable loan terms. However, in practice, trigger leads often result in excessive and unwanted solicitations from third-party lenders that can confuse or overwhelm a typical consumer. In some cases, solicitations from third-party lenders imply an association with the lender that received the consumer’s initial application, seemingly attempting to blur the line between the entities and take advantage of potential consumer confusion. Given the potential for this negative consumer impact, several states, and now the federal government, have proposed or enacted legislation that specifically addresses the use of trigger leads.
State Regulation of Trigger Leads
In November 2024, Texas became the most recent state to enact a law regulating a mortgage lender’s use of trigger leads. However, going back to at least 2007, other states have also enacted comparable requirements governing the use of trigger leads, including Connecticut, Rhode Island, Maine, Kansas, Kentucky, and Wisconsin.
While each state varies, the laws in these states typically impose two specific consumer protections to counteract abusive trigger lead practices. First, in many of these states, the law requires any lender using trigger leads to clearly include in its initial communication with the consumer the identity of the lender, the lender’s practice of using trigger leads, an explanation of trigger leads, and an express statement that the lender is not affiliated with the lender that took the consumer’s initial application for credit. Second, many state trigger lead laws also cite the FCRA and expressly adopt the FCRA requirements that (1) a lender cannot contact a consumer who has opted out of inclusion in consumer reports compiled pursuant to the FCRA and (2) the lender must make a firm credit offer if soliciting based on consumer reports provided in compliance with the FCRA.
However, while these states impose clear obligations on lenders using trigger leads, as a practical matter the only way for a borrower to stop receiving trigger lead-based solicitations is to affirmatively take the “opt out” steps defined in the FCRA.
Potential Impact of Federal Homebuyers Privacy Protection Act
The act would largely shift this responsibility back to the CRA and lender and significantly restrain the marketability and use of trigger leads. Specifically, the act would prohibit a CRA from providing a trigger lead to a lender unless (1) the consumer provided consent for the CRA to share his or her information or (2) the lender seeking the trigger lead has some preexisting relationship with the consumer, such as the lender holding a current account of the consumer. This shifting of responsibility has generally been hailed as needed protection for borrowers. And while the proposed act would effectively flip the focus of when trigger leads are permissible, it would seemingly not conflict with the current state regulatory framework for trigger leads.
Regardless of whether the act is ultimately enacted as federal law, mortgage lenders and CRAs should prepare for a continued focus on the use of trigger leads, as this appears to be a practice that both industry experts and regulators view as in need of reform.
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Trump Administration Day One Executive Orders: Energy Policy
The Trump administration issued several Executive Orders aimed at significantly altering American energy policy, which are summarized below.
Executive Order: Declaring a National Energy Emergency
Fundamental to President Trump’s efforts to stimulate American energy production is his Executive Order declaring a national energy emergency. This is the first time that a president has declared a national energy emergency, although regional energy emergencies were declared by President Jimmy Carter in the 1970s due to shortages of fossil fuels. By declaring a national energy emergency, President Trump is allowing federal agencies to use various emergency authorities to facilitate the “identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources.” The Order defines “energy” and “energy resources” to include “crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals.”
The Order represents the administration’s first step in promoting domestic energy production which, according to the Order, will lower energy prices, create jobs, and strengthen national security. In furtherance of these objectives, the Order directs federal agencies to identify and use all relevant lawful emergency and other authorities to expedite the completion of all authorized and appropriated infrastructure, energy, environmental, and natural resources projects.
Among the more significant provisions in the Order to the regulated community are directives to agencies to evaluate the use of emergency measures in environmental regulations to facilitate and streamline permitting and environmental reviews. Federal agencies must identify and report on planned or potential actions to facilitate energy supply that may be subject to emergency treatment under the regulations and nationwide permits promulgated by the Army Corps of Engineers, such as projects subject to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The Order provides similar requirements for actions that may require agency consultations under the Endangered Species Act (ESA). Agencies must identify and report on planned or potential actions that may be subject to the ESA and provide a summary report of those actions. Agencies are directed to use, to the maximum extent permissible under applicable law, the ESA regulations on consultations in emergencies.
Additionally, the Secretary of the Interior, acting as Chairman of the Endangered Species Act Committee, must convene the committee not less than quarterly to review and consider applications submitted by any applicant for a permit or license who requests an exemption from the agency consultation obligations imposed by Section 7 of the ESA. To the extent practical, the Secretary of the Interior must ensure an initial determination is made on applications within 20 days of receipt and the submission must be resolved within 140 days of the initial determination.
Executive Order: Unleashing American Energy
President Trump’s declaration of an energy emergency dovetails with his Executive Order entitled Unleashing American Energy. The Order directs federal agency heads to review all existing agency actions and identify those that unduly burden domestic energy resources and, within 30 days, develop and begin implementing action plans to suspend, revise, or rescind all such actions. It calls for a particular focus on oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources. The Order also directs agencies to notify the Attorney General of any actions taken to review or suspend, revise or rescind regulations so that (i) notice of the Order and such actions can be provided to any court with jurisdiction over pending litigation in which such actions may be relevant and (ii) a request can be made to the court stay or otherwise delay further litigation, or seek other appropriate relief consistent with the Order.
The Order also focuses on increasing permitting efficiency across agencies, in part by revoking President Carter’s 1977 Executive Order 11991 relating to protection and enhancement of environmental quality, which authorized the Council on Environmental Quality (CEQ) to issue mandatory regulations to implement the National Environmental Policy Act (NEPA). The Order requires CEQ to provide guidance on implementing NEPA and to issue a proposed rule rescinding CEQ’s current NEPA regulations. It also encourages agencies to eliminate permitting delays in their respective processes by utilizing general permits and permit by rule and authorizes the use of emergency authorities for any project an agency head has determined is essential to the nation’s economy or national security. The Director of the National Economic Council (NEC) and the Office of Legislative Affairs are also directed to jointly prepare recommendations to Congress to streamline judicial review of NEPA applications, facilitate permitting, and construct interstate energy transportation and infrastructure.
The Order requires the Environmental Protection Agency (EPA) to issue guidance to address abandoning the social cost of carbon calculations in decision making within 60 days of the Order, and within 30 days of the Order, EPA must submit recommendations on the legality and future applicability of the 2009 Endangerment Finding for greenhouse gases under the Clean Air Act.
Significantly, the Order directs all agencies to pause the disbursement of funds appropriated through the Inflation Reduction Act and the Infrastructure Investment and Jobs Act pending review, including funds for electric vehicle charging stations, and review agency processes, policies, and programs for issuing grants, loans, contracts, or any other financial disbursements of such appropriated funds.
The Order also contains provisions pertaining to liquified natural gas, which lifted a freeze on liquified natural gas exports put in place by President Biden in early 2024. The Order directs the Secretary of Energy to restart reviews of the applications for approvals of liquified natural gas export projects, and reconsider records of decision for proposed deepwater ports for the export of liquified natural gas.
Finally, the Order contains components on mineral dominance, which directs relevant agencies to identify and rescind all agency actions that unduly burden domestic mining and processing of non-fuel minerals. It also provides for geological mapping to focus on unknown mineral deposits, tapping into the potential of uranium, allocating federal funds for critical mineral projects, and requires that policy recommendations pertaining to enhancing mining competition in the United States be submitted by relevant agencies within 60 days of the Order.
Memorandum: Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects
The Trump administration’s efforts to promote the production of energy from traditional energy sources stand in contrast to President Trump’s Memorandum aimed at curtailing wind energy production by withdrawing the Outer Continental Shelf (OCS) from offshore wind leasing and reviewing all leasing and permitting practices for wind energy projects. The Memorandum temporarily prevents consideration of any area in the OCS for any new or renewed wind energy leasing for the purposes of generation of electricity or any other such use derived from the use of wind. It directs the Secretary of the Interior, in consultation with the Attorney General, to conduct a comprehensive review of the ecological, economic, and environmental necessity of terminating or amending any existing wind energy leases, identify any legal bases for such removal, and submit a report with recommendations to the President. Finally, it directs that no new or renewed approvals, rights of way, permits, leases, or loans for onshore or offshore wind projects be issued pending the completion of a comprehensive assessment and review of federal wind leasing and permitting practices.
Executive Order: Unleashing Alaska’s Extraordinary Resource Potential
President Trump also issued an Executive Order entitled Unleashing Alaska’s Extraordinary Resource Potential. The Order’s more significant provisions include directing agencies to prioritize the development of Alaska’s LNG potential, including the permitting of all necessary pipeline and export infrastructure related to the Alaska LNG Project, and to issue permits, right-of-way permits, and easements necessary for the exploration, development, and production of oil and gas from leases within the Arctic National Wildlife Refuge.
Does Filing a Construction Lien Guarantee Payment?
I am often approached by contractors who wish to file a construction lien regarding either a residential or a commercial project. It is not atypical for many of these contractors to believe that filing a lien claim will guarantee the payment of the amount which is due to them. This belief is entirely incorrect, however, as filing a lien claim does not guarantee payment. Instead, all that it does is place a lien on a property, for no more than one year, during which the property cannot be sold or transferred without first addressing the lien claim. In order to receive payment for a lien claim, the lien must be foreclosed upon, which is discussed below.
Unless the property owner voluntarily pays the amount of the lien claim, the only way to receive payment once the lien is filed is to commence a lawsuit against the property owner. In that lawsuit a contractor would seek to foreclose on the lien claim in order to receive payment. During the lawsuit, the contractor would have to demonstrate that it had a contract, that it provided services, and that the owner failed to pay it for the materials and services it provided. In response, the owner could claim that the contractor breached the contract or assert other defenses. Once the lawsuit is finalized, whether by settlement or a trial, the contractor would then be entitled to enforce the lien claim to receive payment.
It is important to note, however, that a lien claim is only good for one year from the date it is filed. Prior to the expiration of that time, the contractor must file suit. Otherwise, the lien claim is no longer valid and must be discharged. If the owner demands, however, the contractor can be forced to file suit within 30 days. As such, a contractor must be aware of this possibility.
If you are a contractor that is considering filing a lien claim it is suggested that you consult with an attorney, as the process for filing a lien claim is technical, and thereafter, filing a lawsuit to perfect the lien claim is likewise technical. You should also be aware, however, that even if you do not file a lien claim that you may pursue an action against the owner to recover the fair value of the materials and services that you provided pursuant to your contract. Nonetheless, it is always suggested that you consult with competent counsel as to the best course of action in pursuing payment from a delinquent owner who has failed to pay for your services.
New Jersey Appellate Court Rejects Bid Protest: Archeologist Not Required to Be Registered under Public Works Contractor Registration Act
We recently blogged about New Jersey’s bid protest requirements for procurements solicited under the New Jersey Division of Purchase and Property (DPP) here. As we noted, public procurements by local governmental authorities fall outside the jurisdiction of the DPP. A recent intermediate appellate court opinion from January 10, 2025, Anselmi & Decicco, Inc. v. J. Fletcher Creamer & Son, Inc., provides some additional guidance on how local bid protests are administered and reviewed.
In Anselmi, the Passaic Valley Water Commission issued a solicitation for bids on a project to construct prestressed concrete tanks at the Levine Reservoir in Paterson, New Jersey. The solicitation included a requirement that all bidders and their subcontractors be registered in accordance with the requirements of the Public Works Contractor Registration Act (PWCR Act). The solicitation also included a requirement that an archaeologist be listed to monitor all construction activities on the site, a registered historic place.
An unsuccessful bidder on the project challenged the award to J. Fletcher Creamer alleging that the archeologist included in Creamer’s bid was not properly registered under the PWCR Act. The commission heard and rejected the protest finding that no archeologist or archeology practice is required to register under the PWCR Act.
The commission’s decision was then challenged in New Jersey Superior Court. The Superior Court upheld the commission’s decision finding that:
Creamer, as the lowest responsive bidder, was correctly awarded the Project. Further, the bid specifications, as well as state law, do not require that Creamer’s archaeologist be registered under the [PWCR Act] for this Project. Further, even if state law did require it, this defect would not be fatal and therefore would not automatically disqualify Creamer’s bid. Because Creamer’s bid is not disqualified, the [Commission] correctly awarded the Project to Creamer as the lowest responsive bidder.
Undeterred, the unsuccessful bidder then appealed the trial court’s decision to the Appellate Division of the New Jersey Superior Court.
On appeal, the unsuccessful bidder argued, in part, that the trial court erred in concluding that Creamer’s failure to identify an archaeologist registered under the PWCR Act was not a statutory, material defect. The appellate court described its standard of review regarding disputes on publicly bid contracts as follows:
When reviewing disputes concerning publicly-bid contracts, ‘the function of [the trial c]ourt is to preserve the integrity of the competitive bidding process and to prevent the misapplication of public funds. We use a deferential standard of review for governmental decisions in bidding cases. The standard of review on the matter of whether a bid on a local public contract conforms to specifications…is whether the decision was arbitrary, unreasonable[,] or capricious. If a public entity’s decision is grounded rationally in the record and does not violate the applicable law, it should be upheld.’
In contrast, we review issues of statutory interpretation de novo. Accordingly, when reviewing a local entity’s or trial court’s interpretation of a statute, we exercise plenary review. (internal citations omitted)
The appellate court affirmed the trial court’s and commission’s decisions rejecting the bid protest.
The appellate court found that the archaeologist on the project was not required to be registered under the PWCR Act because it was not being hired to perform “public work” as defined in New Jersey law:
Read in full context, the language of both the PWCR Act and the PW [Public Works] Act requires subcontractors to be registered when those subcontractors will be performing public work as defined by the PW Act and they are required to pay ‘prevailing wage[s]’ to their workers under State law. The archeologist on the Project will not be performing public work as defined by the PW Act. The [contract] makes clear that the archeologist will not be engaging in or performing any construction, reconstruction, demolition, alteration, custom fabrication, duct cleaning, repair work, or maintenance work. N.J.S.A. 34:11-56.26(5). Instead, the archeologist will be monitoring ‘all excavation activities’ and preparing ‘monitoring report[s].’
… In short, if the subcontractor is not performing public work as defined in the PW Act, the subcontractor does not have to be registered under the PWCR Act.
The Anselmi case illustrates how state-level bid protests outside of the jurisdiction of the DPP may be handled. Contractors working on state or local projects in New Jersey can expect some variation depending on the local authority issuing the procurement. As indicated in Anselmi, New Jersey courts are likely to be deferential to the governmental decision on the initial protest, so unsuccessful bidders may want to keep that in mind when evaluating whether to appeal a protest denial to a trial court or beyond.
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Property Tax Relief for Southern California Property Owners Affected by the Recent Palisades, Eaton, and Other Fires and Windstorm Conditions
Recent fires in Southern California, including the Palisades, Eaton, and Sunset fires, have collectively burned tens of thousands of acres and devastated communities across the Greater Los Angeles area. More than 12,000 structures have been destroyed or damaged, including homes and businesses, and initial estimates have placed this emergency among the most destructive in California history. On Jan. 7, 2025, Governor Newsom proclaimed a state of emergency in Los Angeles and Ventura Counties due to the Palisades Fire and windstorm conditions.
Below we highlight property tax relief measures that may be available to property owners whose properties have been damaged or destroyed by these recent events. As discussed further below, for most affected property owners, property tax relief options include a temporary reduction in the damaged or destroyed property’s assessed value, deferral of property taxes, and/or one or more options to transfer the damaged or destroyed property’s base year value to replacement property. A recently issued executive order also provides for a limited suspension on the imposition of penalties, costs, or interest for the failure to pay property taxes or file a personal property tax statement. Each of these relief measures, and the related eligibility and filing requirements, are discussed in more detail below. Additionally, in certain situations, additional relief options may be available, depending on the specific facts in each case. Property owners should seek the advice of their professional advisors to understand how the options may apply to their particular circumstances.
Samuel Weinstein Astorga also contributed to this alert
Continue reading the full GT Alert.
Flying Taxis Brisbane 2032—Olympic Dream or Reality?
Over the next eight years as elite athletes train with their eyes on winning gold at the 2032 Olympic and Paralympic Games in Brisbane, there is another Olympic dream that edges closer to reality—that of flying taxis transporting competitors and spectators around South East Queensland to Olympic venues.
It was hoped that a small fleet of flying taxis would make their Olympic debut at the 2024 Paris Olympics. Unfortunately, flying taxis ‘missed the flight’ in Paris as there were delays in obtaining the requisite air safety certifications from the European Union Aviation Safety Agency (EASA) in time for the Games. Nevertheless, a test flight was carried out on the last day of the 2024 Olympics over Versailles palace, carrying luggage but no people.1
Now air taxi manufacturers have turned their hopes towards the Los Angeles Games in 2028.2 In a positive step forward, in October 2024, the US Federal Aviation Administration (FAA) issued a final rule for operating air taxis and how pilots will be trained to fly them.3 If flying taxis are successfully integrated into the airways for the Los Angeles Games, then in a further four years’ time, they could play an important role at the Brisbane Games.
Flying taxis could assist in managing congestion, with the RACQ Red Spot Congestion Survey 2023 raising concerns about how Queensland roads would cope in 2032.4 Flying taxis could also support Queensland’s tourism industry to allow fast access to regions from Brisbane. The recent Brisbane Olympic and Paralympic Games Arrangements and Other Legislation Amendment Act 2024 inserted a new requirement on the Games Independent Infrastructure and Coordination Authority that the Games deliver legacy benefits for all of Queensland, including regional areas.5
The last few months of 2024 have seen flying taxis progress further towards becoming a reality at the Brisbane Olympics:
In November 2024, it was announced that Archerfield Airport Corporation (AAC) and Wisk Aero had signed a Strategic Alliance Agreement to support electric vertical take-off and landing aircraft (eVTOL) air taxis at Archerfield Airport, Queensland. AAC Executive General Manager Rod Parry said at the time that the airport was uniquely well-placed to service the emerging advanced air mobility (AAM) sector given “Archerfield’s central location only 11 kilometres from Brisbane’s CBD and between three 2032 Olympic and Paralympic zones.” He further noted that “By the time of Brisbane’s Olympic Games, eVTOLs will likely be providing essential emissions-free transport services from vertiports around the region, keeping traffic off our busy roads and ensuring the efficient transfer of personnel to key sites throughout South East Queensland.”6
November 2024 also saw AMSL Aero announce that it had completed the first free flight of Vertiia, its passenger-capable, emission-free, long range eVTOL aircraft. The flight was heralded a landmark as it was the first made by an Australian-designed and built eVTOL.7
In December 2024, it was reported that three Civil Aviation Safety Authority (CASA) senior certification engineers had travelled to Santa Cruz, California, to look at how the FAA and Joby Aviation (Joby) are working together to certify the company’s eVTOL Advanced Air Mobility aircraft, the JAS4-1. Joby has applied for the aircraft to be certified by CASA for use in Australia. CASA is collaborating with other aviation authorities on standardising type certification of AAM aircraft.8
Also in December 2024, CASA issued its updated ‘RPAS and AAM Strategic Regulatory Roadmap’ which charts a path for safely integrating remotely piloted aircraft systems and advanced air mobility into Australian airspace and the future regulatory program.9
Over the last three years since it was announced that Brisbane would host the 2032 Games, a lot of conjecture has focused on the location of the stadium. Whichever venue is ultimately selected, to deliver an Olympic legacy that will be fit for purpose for years to come, the stadium and indeed any new infrastructure built for the Games like new hotels and transport hubs, will need to incorporate vertiports and other facilities to cater for flying taxis as they become a way of life in the future.
There is a complex web of Australian laws that govern the innovative technologies of AAM, including flying taxis. AAM operations fall within the domain of regulation by CASA to ensure aviation safety under the Civil Aviation Safety Act 1988 (Cth) and the Civil Aviation Safety Regulations 1988 (Cth).
Beyond CASA requirements, AAM operations and their vertiports are also governed by a broad but fragmented system of different pieces of legislation ranging from town planning to environmental, privacy, safety, property damage, personal injury and radio-communications.
We have extensive experience in assisting clients comply with CASA requirements and advising on the rapidly evolving legal framework that governs AAM operations.
Footnotes
1 Caroline Petrow-Cohen, ‘Aviation startup seeks to bring air taxis to Los Angeles in time for Olympics’, Los Angeles Times (online, 26 September 2024) https://www.latimes.com/business/story/2024-09-26/startup-seeks-to-bring-air-taxis-to-los-angeles
2 Jack Daleo, ‘Air Taxis Missed Paris Olympics Goal – Could They Soar in LA?’, Flying (12 August 2024) https://www.flyingmag.com/modern/air-taxis-missed-paris-olympics-goal-could-they-soar-in-la/
3 The Associated Press, ‘Flying air taxis move closer to US takeofff with issuing of FAA rule’, AP (online, 23 October 2024) https://apnews.com/article/faa-air-taxis-regulation-electric-aviation-85fd3c8b905a003eff64590afb5da339
4 Rebecca Borg, ‘Making things difficult: New survey finds QLD roads aren’t match fit for 2032 Olympics’, News.com.au (2 July 2023) https://www.news.com.au/national/queensland/news/making-things-difficult-new-survey-finds-qld-roads-arent-match-fit-for-2032-olympics/news-story/d2c63c828589679cb3772156dcb637be
5 S.53AE(b) Brisbane Olympics and Paralympics Games Arrangements Act 2021 (Qld)
6 ‘Archerfield Airport and Wisk Aero Sign Strategic Agreement’, Archerfield Airport News (21 November 2024) https://archerfieldairport.com.au/wp-content/uploads/2024/11/Archerfield-Airport-and-Wisk-Aero-Sign-Strategic-Agreement-1.pdf
7 ‘AMSL Aero Makes Aviation History by Completing Landmark Free Flight of Zero-Emissions Aircraft “Vertiia”, AMSL Aero (18 November 2024) https://www.amslaero.com/news/landmark-free-flight
8 Civil Aviation Safety Authority, ‘Collaboration on advanced air mobility’ (3 December 2024) https://www.linkedin.com/pulse/collaboration-advanced-air-mobility-umytc/?trackingId=WNO26%2BqGI0SQocvEDS44RA%3D%3D
9 Civil Aviation Safety Authority, ‘Our updated RPAS and AMM Strategic Regulatory Roadmap is now available’ (11 December 2024) https://www.linkedin.com/company/civil-aviation-safety-authority-casa-/posts/?feedView=all
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Secured Lenders: Keeping Your Receiver in the Driver’s Seat During Bankruptcy
You put in the work to get a receiver appointed. Do not let a bankruptcy filing get in the way of your efforts. A receivership is a remedy used by secured lenders primarily to preserve their collateral when a borrower fails to pay its debt and the property may be at risk of losing value. The receivership is often used during a judicial proceeding to foreclose a lender’s mortgage on real estate. In a court-authorized receivership, an independent party will be appointed as receiver and will exercise control over the mortgagor’s property to preserve and manage the property. That sometimes involves managing business operations, collecting rents or even preparing the property for a sale.
It is not uncommon that on the eve of a foreclosure sale, as a defense, a mortgagor will file a voluntary petition for bankruptcy to stop the sale of the property. The Bankruptcy Code not only stops the sale by virtue of the automatic stay, but it also imposes obligations on the receiver to turn over property to the debtor-in-possession and provide an accounting in the bankruptcy case pursuant to Section 543(b) of the Bankruptcy Code.
Section 543(b) states that a custodian shall:
(1) deliver to the trustee any property of the debtor held by or transferred to such custodian, or proceeds, product, offspring, rents or profits of such property, which is in such custodian’s possession, custody or control on the date that such custodian acquires knowledge of the commencement of the case; and
(2) file an accounting of any property of the debtor, or proceeds, product, offspring, rents or profits of such property, that, at any time, came into the possession, custody or control of such custodian.
Section 543(a) generally bars a receiver from taking further action to administer property of the estate, or in other words, to perform the duties and obligations the receiver is required and authorized to carry out in the non-bankruptcy proceeding.
What secured lenders should know is that the court-appointed receiver’s turnover requirements may be excused pursuant to Section 543(d). Under Section 543(d), the bankruptcy court may excuse the receiver’s compliance with Sections 543(a) and (b) if the interest of creditors would be better served by permitting the receiver to continue in possession, custody or control of the property.
Factors that bankruptcy courts have often looked at to determine whether compliance should be excused are:
(1) The likelihood of reorganization and whether funds held by the receiver are required for reorganization;
(2) Whether there were instances of mismanagement by the debtor;
(3) Whether turnover would be injurious to creditors; and
(4) Whether the debtor will actually use the property for benefit of its creditors.
In re Franklin, 476 B.R. 545, 551 (Bankr. N.D. Ill. 2012) (citing In re Falconridge, LLC, No. 07-BK-19200, 2007 WL 3332769, at *7 (Bankr. N.D. Ill. Nov. 8, 2007)). Generally, when the majority of a debtor’s debt is owed to a secured lender, the secured lender’s interest is given great weight. See In re Foundry of Barrington Partnership, 129 B.R. 550, 558 (Bankr. N.D. Ill. 1991).
These factors are not exhaustive and the bankruptcy court’s inquiry will be fact specific.
Online judicial sales – Illinois Mortgage Foreclosure Law Enters the Digital Age
Purchasers of distressed real estate in mortgage foreclosure proceedings can now work remotely, too. Governor JB Pritzker signed into law Public Act 103-930 S.B. 2919, which became effective January 1, 2025, and allows the “sheriff or other person” to conduct a judicial sale “in person, online or both.” 735 ILCS 5/15-1507(b)(2). From the birth of the Illinois Mortgage Foreclosure Law (IMFL) in 1987 through 2024, foreclosure auctions could only be conducted in person.
The primary purpose of this amendment to the IMFL is to maximize the value of real estate sold at auction by expanding the reach to bidders unbound by geography. So, rather than needing to appear in person in the lobby of a sheriff’s office or in a room of a court-approved selling officer, bidders can now log in to an online platform like Ten-X through their computer or mobile device, perhaps in their sweats, and bid up the price of the collateral being sold. The higher the sale price, the better the chance the first mortgage holder gets paid in full, a junior lien holder makes a recovery and the mortgagor collects a surplus.
The rules applicable to online judicial sales are set forth in section 15-1507.2 of the IMFL. The highlights are as follows: the sheriff or other person may may conduct an online sale or engage a third-party online sale provider and charge an additional fee for associated costs to be paid by the seller; must demonstrate to the court’s satisfaction the processes and procedures for conducting online auctions and adequate record-keeping; shall require bidders to complete a registration process that includes providing information relevant to identify the buyer, contact the buyer and complete the sale of the property; and shall verify the identity of the bidder through an independent verification process. Importantly, the person conducting the online sale and the third-party online sale provider may “promote and market the sale to encourage and facilitate bidding.”
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Text Form Now Sufficient for Long-Term Commercial Leases in Germany
Fourth Bureaucracy Reduction Act (BEG IV) entered into force Jan. 1, 2025
The Fourth Bureaucracy Reduction Act (BEG IV) took effect Jan. 1, 2025, introducing a major change for commercial leases. Compliance with the statutory written form pursuant to section 126 BGB of the German Civil Code (BGB) will no longer be required to meet the form requirement for long-term commercial lease agreements stipulated at section 550 BGB. Instead, compliance with the statutory text form pursuant to section 126b BGB will be sufficient. As a result, commercial leases with a fixed term of longer than one year will now only have to comply with the text form requirement.
As was previously the case, lease agreements concluded without complying with this form requirement will not be invalid. Rather, they will be deemed to have been concluded for an indefinite period and may be terminated after one year, complying with the statutory notice period for ordinary termination.
The relaxation of the form requirement applies to all commercial leases entered into or amended after Jan. 1, 2025. For leases concluded before Jan. 1, 2025, the written form will continue to apply up to and including Jan. 1, 2026. Thereafter, the applicable form for existing leases will also be the statutory text form. Compliance with the Statutory Text Form
In contrast to the written form, the text form does not require a wet-ink signature or a qualified electronic signature. To comply with the statutory text form, a legible declaration must be recorded on a durable medium and names the person making the declaration. A durable medium enables the recipient to store or save the declaration in such a way that it remains accessible to them for a reasonable period and can be reproduced unchanged. Examples of such mediums include e-mail, messenger services, SMS, social media messaging services, as well as PDF files or data files that have been signed using a simple electronic signature (e.g. via DocuSign).
Open Questions
Previous case law has developed several requirements for complying with the statutory written form, particularly regarding wet-ink signatures. The signature serves as a concluding function, and courts required maintaining “documentary connection” (Urkundszusammenhang), meaning all components of a lease agreement (the individual pages, annexes, and amendments), must be recognizable as belonging to the same contract. While current case law no longer requires the physical binding of all documents, a connection between the main contract, amendments and annexes must remain clearly recognizable through corresponding references. It remains uncertain whether the courts will impose the same requirements for lease agreements executed in text form. However, given that the form requirement’s purpose remains unchanged – allowing property purchasers who enters into lease agreements by operation of law the opportunity to comprehensively review the contract – suggests this may be the case.
Despite the BEG IV’s relaxation of the required form, careful consideration remains essential. Companies should review and potentially adapt existing conclusion and signing processes, depending on the preferred method of signing. Additionally, companies may wish to exercise caution during digital contract correspondence, as it could bring about unintended contract changes or risk required form breaches by failing to preserve the required documentary connection. Additionally, the content of digital correspondence is often unclear, incomplete, or contradictory. This not only makes it more difficult for the contracting parties and potential purchasers to clearly determine the contract content, which may lead to disputes and give rise to a breach of form due to unclear provisions.
Considerations
In light of the new relaxation of the form requirements, companies and practitioners should consider the following points:
Form of signature
As future long-term commercial lease agreements now only need to comply with the statutory text form, neither wet-ink signatures nor qualified electronic signatures are required. As such, lease agreements can be concluded electronically, without printing out the contract and its annexes. For evidentiary and storage purposes, however, consider using tools to sign the contract digitally. Wet-ink or qualified electronic signatures also remain permissible, as they meet the text form requirements. Parties may also agree to subsequently use the stricter written form. Landlords should determine whether and how they wish to sign their contracts in future and adapt their contract conclusion, signing and storage processes, if necessary. Purely digital contracts may quickly gain acceptance, particularly in the case of major landlords or international contracting parties, due to the simplified processes for preparing contracts and obtaining signatures.
Careful contract drafting
Material contractual terms should still be recorded clearly and without contradiction, regardless of form. Companies should consider creating a single (even if only digital) document including all annexes. Caution should be exercised when concluding or amending contracts by means of purely digital correspondence, e.g. by way of email, as this entails risks with regard to form and interpretation.
Disclaimers in offers and correspondence
To avoid unwanted contracts being concluded by email or other digital media, companies should use clear communication guidelines and appropriate disclaimers.
Complete contract document exchange
When concluding a contract digitally, parties should exchange the entire contract, rather than only exchanging signature pages. If annexes need to be sent separately, they should clearly relate to the main body of the contract, and the other party should expressly confirm their content.
Secure digital document storage
Digitally concluded contracts must be permanently saved. Since some tools delete contracts after a certain period of time, separate storage is required. Depending on the circumstances, associated email correspondence may also need to be archived.
Amendment of previous written form clauses
Depending on the preferred conclusion procedure, previously standard written form clauses should be amended in new and existing lease agreements, and any voluntary (text) form criteria for concluding future contracts defined, e.g., it can be agreed, for evidentiary and storage purposes, that contract conclusion requires at least the exchange of parts signed using a simple electronic signature.
In summary, while the relaxation of the form requirement under section 550 BGB the BEG IV introduced will simplify the conclusion of long-term commercial leases in the future, it does give rise to potential pitfalls. Parties should continue to carefully observe form requirements and adjust existing contract conclusion, signing, and filing processes if required.