What Is A BFFP Defense Against CERCLA During Commercial Acquisition?

11/04/2026 09:50 AM Mark Goodman

CERCLA was established in 1980, and to address buyer concerns over inherited debt liability, Congress later established the Bone Fide Prospective Purchaser defense in 2002. The BFPP defense effectively allows a purchaser to buy a property with full knowledge of contamination and still avoid owner liability, provided they satisfy a specific set of conditions and continue satisfying them after closing. We explore those conditions in today’s blog so that you understand your obligations in the event you want to purchase contaminated property or discover a pollution issue with a prospective property during the due diligence stage of acquisition.

The BFFP defense absolves you of the former liability for contamination and cleanup costs, but you need to follow some specific rules to remain in good standing, and failure to do so can lead to the revocation of this allowance. Your title professional can go into greater detail and specifics for your commercial property, but in general, a purchaser must show the following in order to earn BFFP defense status:

All disposal of hazardous substances occurred before your acquisition;

All “appropriate inquiries” were completed before purchase;

All legally required notices were provided;

That reasonable steps in connection with “appropriate care” were taken to stop any continued contamination and to limit future exposure;

That the buyer cooperates with any investigative and cleanup actions;

That they comply with land use restrictions and institutional controls;

That they respond to information and regulatory requests; and

That they have no affiliation with any party responsible for the contamination other than being in the chain of title.

Some of those points seem a bit ambiguous, which again speaks to the importance of connecting with a title services team. Moreover, it’s worth noting that although a BFFP defense will need to be established before closing, your obligations do not end once you’ve closed. As you can see, some of the requirements will exist once you take over, so consider them a list of necessary and continuing obligations to ensure a liability shield.

It is obvious why this process needs to be performed correctly, and we’ve been helping prospective buyers with BFFP defenses since its establishment in 2002. Let us be your guide and keep you financially protected throughout your next commercial purchase. For more information, or for help with a different aspect of the commercial purchase process, give the team at Commercial Partners a call today at (612) 337-2470.