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Look Before you Leap when Considering Purchasing Contaminated Property

Written on November 27, 2018

There was a time when buyers had two options upon discovering that a tract of real estate was contaminated: The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) required them to walk away from the deal or clean it up. Familiarly known as “Superfund,” this statute assigns liability to current owners of polluted properties, regardless of fault. The only way to avoid incurring liability would be to thoroughly investigate the site and not find evidence of contamination, making you a truly innocent purchaser.

A 2002 change to CERCLA added a new category to insulate buyers from legal responsibility. The Brownfield Amendments carved out another exception for a “bona fide prospective purchaser” (BFPP). Eligible buyers could purchase a contaminated site, with knowledge of its state, and not be liable. If you qualify, there are significant investment opportunities. However, you still have certain responsibilities as a BFPP. A Florida construction law lawyer can help you navigate the process, which has become the standard when purchasing real estate.

Pre-Purchase Due Diligence

A BFPP must engage in environmental due diligence, which involves an assessment of the site’s current condition and potential for pollution. This part of the process occurs before the real estate closing, giving you the opportunity to investigate and gather data to help you make an informed decision. If you discover any problems, you can work with a contracts lawyer to exit the agreement or proceed.

Fill the Gaps for Phase I Environmental Site Assessments

Phase I ESAs are completed by third parties to identify contamination on property according to certain standards. Some may be insufficient for purposes of the BFPP defense. There may be gaps in interviewing former owners regarding occupancy or land usage going back to 1940 and/or the property’s first development. If the disparities are significant, that could affect your duty to conduct proper due diligence. You could lose your status as a BFPP and become liable for clean-up.

Continue to Do Your Homework

When the Phase I ESA reveals certain environmental issues, you must decide whether additional investigation is necessary. Your due diligence may include a sampling of soil, groundwater, and other factors. Maintaining your position as a BFPP requires that, after you close, you take reasonable steps to prevent further contamination. The reasonableness standard may vary, and it may require that you move to Phase II testing.

Understand Continuing Legal Obligations

Even once you establish BFPP status, you must maintain it. CERCLA requires ongoing obligations, such as providing designated notices, cooperating with relevant agencies, providing data upon request, and implementing measures to cease potential releases of contaminants.

Talk to a Florida Business Law Attorney About Buying Contaminated Property

If you have questions about business litigation, contract disputes, and other issues regarding the purchase of contaminated real estate, our team at Clearwater Business Law can offer knowledgeable guidance. Please (727) 785-5100 to schedule a consultation with a business litigation lawyer who can provide more information on your options. We represent businesses in Clearwater, St. Petersburg, and throughout Pinellas County, FL, and we are here to help.


I strongly endorse Andrew Mongelluzzi. He is a very skilled and able business attorney focused on customer service and results. On the front end, Andrew deftly advises new businesses on organizing properly, acquiring necessary licenses, contracting with vendors & customers, and dealing with various compliance issues that may arise. On the back end when things go south, Andrew counsels and navigates businesses through complex commercial disputes and aggressively represents them in negotiations, mediation, arbitration, and in litigation so that businesses can legally move on and get back to business. Andrew’s ability to identify legal issues and approaches to resolve business-related issues is a strength that I have learned from and professionally relied upon in approaching the business matters and cases that I handle. I regularly refer business to Andrew knowing that he will diligently represent his business clients and their best interests.
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Attorney Mongelluzzi and his team provided excellent and quality service. I always felt that my needs were met and that the firm was invested in me and my case. The quality services I received at Mongelluzzi’s firm were remarkable. From the initial meeting they were responsive to my calls, questions and concerns. All issues were handled professionally and timely, easily accessible, got back to me quickly, aggressive and got me the results that I wanted. Attorney Mongelluzzi and his staff all gave my case their personal attention and provided the quality of work that anyone would want when hiring an attorney.

- Client

Andrew is very thorough defining the outcome expectations. In my case, it was setting up a new corporate entity. He advised me on the most beneficial option and he then executed on that path. Andrew is a very pleasant person to work with. He is determined, skilled and committed to his client’s success.

- Gil Pinney

Andrew helped me through a difficult situation with American Express and we won the case. A great job by Andrew! He also helped me with T&C’s in my company. I would recommend Andrew highly as an attorney.

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As a business owner for 12 years I have seen my fair share of ups and downs. Some of the downs would include landlord/tenant disputes and creditors that may have not been fulfilled to agreement. Andrew has met both of these situations for me in a timely, positive, and affordable manner.

- Rich Mattes

It was very nice to have a lawyer who not only is fierce in negotiations but has been successful in business. This is a lethal combination. I was glad he was on my side.

- Nigel Castanheiro

Andrew helped me with a contract litigation case. The lawyers battled it out for over a year and we finally got a reasonable settlement offer. Then the other side tried to back out. Andrew figured out how to force the other side to honor the deal and really knows his way around the court system. Definitely feel comfortable using him again.

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