Clearing a building site inside a crowded city can often be efficiently done by “imploding” existing structures utilizing high explosives. While the science of demolition by implosion is mature and can be implemented safely, neighboring property owners have legitimate concerns about damage from flying debris, dust, ground vibration and air blast overpressure. At the same time, they often stand to gain indirect benefits from the demolition and redevelopment of nearby derelict buildings. The developer clearing his site by implosion may be seen as committing an intentional trespass on neighboring land. And the developer has a non-delegable duty to assure safe handling of explosives. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 795 (Tex. 2006) (citing Restatement (Second) of Torts §§ 427, 427A). Both the developer and nearby property owners can benefit from working out clear contracts and reasonable loss prevention precautions in advance of the implosion.
A useful way to approach the allocation of risks is to classify them by contract as either “anticipated impacts”, consented to up front by the affected neighbor in exchange for the agreed consideration, or “unanticipated impacts”, to which the neighbor does not consent, and as to which all rights are reserved. Typically, the most serious impacts anticipated to neighboring property will be loss of use of buildings during the blast and cleanup, and the large amount of dust that will be emitted from the implosion site. In the case of commercial rental property, this loss of use is relatively easy to calculate and can be resolved by payment of a stipulated sum, contingent upon the implosion going off on schedule, with stipulated additional sums due for specified periods of delay in the implosion which extend the anticipated period of loss of use. The risk/cost of clearing the inevitable dust and small particulate debris can be allocated either by allowing the developer’s personnel and equipment to have access to the neighboring property to restore the level of cleanliness that which existed before the implosion, or by a negotiated stipulated payment, in exchange for which the neighboring property owner accepts the risk/cost of cleanup. Generally, it would seem preferable to leave the risk and cost of cleanup on the developer, who will already have personnel and equipment mobilized and available on site in connection with the implosion.
The developer should consider seeking agreement from the neighbor to allow the implementation of safety precautions directly on the neighboring property. For example, dust covers may need to be installed over air intake vents to prevent dust intrusion into the building and potential damage to HVAC equipment. If the implosion site and the impacted neighboring property are very close, geotextile fabrics may be suspended adjacent to nearby buildings to protect windows and other building surfaces from damage from flying gravel or other projectiles.
Seismographic monitoring equipment is commonly temporarily installed on nearby property to record the vibration levels experienced by various parts of the building during the implosion, and ground penetrating radar may be utilized before the implosion to find any foundation issues that pre-date the implosion. Along the same lines, a thorough photographic survey of the neighboring building is advisable to identify and document any pre-existing damage. The developer’s demolition subcontractor will often employ a monitoring company to perform these tasks, and the neighboring property owner should consider engaging its own consultant to work with the developer’s personnel to ensure the safety precautions and monitoring equipment and procedures are reasonable. A detailed schedule for all implosion-related activities, from the initial installation of dust covers and evacuation of the neighboring building to the completion of final cleanup, should be included in the agreement, along with provisions specifying payment or other consequences for delay, to the extent the owner is deprived of the use of all or part of its building.
“Unanticipated impacts”, such as personal injury or physical injury to tangible property, are naturally the risk of the developer, and the parties should expressly confirm this in their contract. The neighboring property owner should obtain assurance of adequate insurance coverage to respond to any such damage, either under its own property and casualty policies, or under the developer’s liability policies.
While there are excellent form contracts available for most construction-related projects, there are no form contracts allocating the risk of demolition by implosion. Parties contemplating such activities would be well-advised to consult experienced counsel before engaging in, or consenting to, an implosion project.