Environmental Lien Information
When a government agency (EPA, state environmental agency, or local government) performs environmental cleanup on a contaminated property, it may place a lien on the property to recover the cleanup costs. Environmental liens are particularly powerful because they typically have super-priority status, meaning they take precedence over most other liens including first mortgages. This super-priority nature can be devastating to lenders and subsequent purchasers who may find their interests subordinated to cleanup costs that can range from tens of thousands to millions of dollars. Environmental liens may be recorded in the official records or may exist as unrecorded statutory liens.
Florida Legal Definition
In Florida, environmental liens are authorized under Florida Statutes §376.308, which provides that costs and damages incurred by the FDEP in cleaning up contaminated sites are recoverable through a lien on the property. The lien has priority over all other liens except property tax liens. CERCLA (the federal Superfund law, 42 U.S.C. §9607) also creates federal liens for cleanup costs that have super-priority status. Florida Statutes §376.313 imposes strict liability on persons who caused or contributed to contamination, and the cleanup costs can be recovered through a lien on the contaminated property. These liens may not appear in a standard title search unless they have been properly recorded.
How It's Used in Practice
In practice, attorneys identify potential environmental lien exposure during Phase I Environmental Site Assessments conducted as part of real estate due diligence. If contamination is identified, the attorney evaluates: whether cleanup has been performed by a government agency, whether a lien has been recorded, the amount of cleanup costs that may be liened against the property, and the availability of the innocent landowner defense. Title insurance policies typically exclude environmental liens from coverage, meaning the buyer must conduct separate environmental due diligence. Attorneys advise buyers to obtain environmental insurance to protect against unidentified contamination and resulting cleanup liens.
Key Takeaways
- Environmental liens secure government cleanup costs against contaminated property.
- Have super-priority over most other liens, including first mortgages.
- Florida Statutes §376.308 authorizes FDEP cleanup liens.
- May not appear in standard title searches.
- Title insurance typically excludes environmental lien coverage.
Disclaimer: The information and opinions provided are for general educational, informational or entertainment purposes only and should not be construed as legal advice or a substitute for consultation with a qualified attorney. Any information that you read does not create an attorney–client relationship with Barnes Walker, Goethe, Perron, Shea & Johnson, PLLC, or any of its attorneys. Because laws, regulations, and court interpretations may change over time, the definitions and explanations provided here may not reflect the most current legal standards. The application of law varies depending on your particular facts and jurisdiction. For advice regarding your specific situation, please contact one of our Florida attorneys for personalized guidance.
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