Judge Voids Lease in Mercury-Tainted Daycare Case

I was curious to see how this played out as it will have far-reaching effect in the business of buying, selling and remediating contaminated sites in the state that has the most:

A New Jersey Superior Court judge's decision last week to void the deed to a contaminated day-care building, freeing the owner from cleanup costs, has sparked a wide range of reactions and debate about its implications.

The decision infuriated parents who sued the building owner after their children breathed poisoned air in the now-shuttered Kiddie Kollege. But it was applauded by some lawyers because it took up the cause for investors who buy contaminated industrial sites without fair warning of the pollution.

In the nine-page opinion, Judge James E. Rafferty said a Franklin Township real estate broker who acquired a bankrupt thermometer factory and then rented it to the day care was not properly informed of the contamination.

Jim Sullivan III, under the auspices of family companies Navillus Group and Jim Sullivan Inc., had bought tax liens and later foreclosed on the property, saying he did not know it harbored mercury vapors.

This is a complex case to be sure. The children were shown to have elevated mercury levels--some as much as four-times what is considered safe. The buyer of the property did not perform his due diligence to determine past activities at the site and the lessees did not ask either.

I feel for the parents who deserve recourse as their children were exposed to a very hazardous substance. The hazards on mercury can be found here (link in pdf but chock full of info)

I tend to agree with the ruling. When a person or firm buys a property, the seller must come clean on any potential contamination but in many cases don't because of the liability issues, cleanup costs that can easily go into the high hundreds of thousands and the endless red tape of declaring a site contaminated. The buyer was not advised of the former uses of the property-even though they should have inquired--thereby they can not be held liable. I make my living partially by cleaning up these impacted sites that can be contaminated with anything from hexavalent chrome, lead, PCB's to volatile organic compounds such as benzene or xylene.

In the Northeast, virgin land is disappearing so townships must build on existing land. developers but the land and in cases where the property has contamination, clean it up and sell it. The sites are called brownfields. But when a property is sold and the potential for contamination is not disclosed, it leads us to circumstance such as this case.

Again, I'm not clearing the buyer of all liability, in this region, a phase one assessment must be done on any property. But legally, they are in the clear if the seller didn't disclose--in writing--the past uses and possible residual waste at the site.