In a ruling that has a potentially significant effect on the evaluation of CERCLA liability in real estate transactions, the 7th Circuit found that the title holder of contaminated property might not be an “owner” under CERCLA. The defendant had purchased the property at a county tax sale and then orally agreed to sell it to another who paid a portion of the purchase price. The EPA ordered defendant to clean up the property and after refusal the EPA performed a removal action and sued to recover response costs. The court held that, by entering an enforceable contract to sell, defendant had transferred equitable ownership and therefore was no longer an “owner” but instead held the title in trust for the buyer. Acknowledging that such oral contracts are generally not enforceable under the Statute of Frauds, the could held that fact issues such as partial performance precluded a ruling on the ultimate issue and remanded to the trial court for further proceedings. The court acknowledged that its analysis made defendant a “former owner,” one of four bases for CERCLA liability, but did not address the issue of whether parties who hold title briefly while “flipping” properties are liable as former owners, a question on which there is much conflicting law. Drafters of sales contracts should not rely on the usual analysis that environmental liability does not pass until title passes but are well advised to add language clarifying the time that liability passes to avoid buyers facing liabilities they did not expect.

Link to U.S. v. Capital Tax Corp. (Click on case name.)