Fitzgerald & McGroarty PA
800-465-1307 609-365-0036

Misconceptions about environmental liability in land sales

When you are looking to purchase a piece of property, part of your due diligence will probably be to assess whether it has any environmental issues that could cause you problems in the future. If your research indicates that such a problem exists, you may consider walking away from the sale.

However, that may not be necessary. Many misconceptions exist regarding how buyers deal with environmental issues. You may want to understand what your liability actually is before making any final decisions regarding purchasing the property.

Don't believe everything you hear

Some environmental issues do require action within a timely manner, but not all of them. In addition, you may not be the one responsible for them. Consider the following:

  • Just because you purchase an older building that may consist of materials containing asbestos does not mean that you will need to remove the asbestos upon purchase. If the materials are in good shape and can be maintained, there is no need for asbestos abatement. However, if you intend to remodel and that includes demolition of those materials, abatement may become necessary.
  • Analyzing the quality of the air in a building purportedly containing mold won't be enough. Mold arises out of moisture. The only way to rid the building of mold is to eliminate the source of the moisture feeding it. The source of the mold-causing moisture could come from a variety of building defects. The source will determine the best way of removing it and the mold.
  • Just because a New Jersey agency has declared that a site is "cleaned up" does not mean that you can drop the matter. That determination may have been contingent on how the prior owner used the property. That could change when you take possession.
  • Your due diligence could prevent you from assuming all liability for environmental issues of the property. If you satisfy the Environmental Protection Agency's "all appropriate inquiry" requirement, which often means obtaining at least a Phase I Environmental Assessment, you could escape liability for any clean up required.

These are just some of the instances in which you, as a purchaser, may avoid liability for any environmental issues a piece of property you wish to buy may have. However, this is not an exhaustive list. Environmental law can be rather complex, and it may be a good idea to discuss your situation and the property you wish to purchase with an experienced environmental law attorney in order to help avoid any costly surprises in the future.

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