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What Does A Bona Fide Prospective Purchaser Defense Do For A Property Buyer?

The Bona Fide Prospective Purchaser (BFPP) defense has been around for more than a decade...

The Bona Fide Prospective Purchaser (BFPP) defense has been around for more than a decade, but evidenced by a number of recent court cases the limits of how it can and should be applied is contested. Very simply put, the BFPP defense protects purchasers who have knowledge of existing contamination against liability as an owner or operator if “appropriate care” is taken to deal with the contamination. As such, the BFPP could acquire a Brownfield site without incurring liability as long as an All Appropriate Inquiry is completed. EPA explains that they “encourage the cleanup and revitalization of contaminated properties” by implementing landowner liability protections such as the BFPP defense. Seems straight forward—so where does the debate about the applicability of this defense come from?

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