Can a plaintiff bring a cost-recovery claim under the Texas SWDA or CERCLA against the seller even though the buyer bought the property “as is”?

Yes.  A Texas court of appeals has also ruled that, even though the seller and buyer of real estate had agreed in their contract of sale that the property was being sold “as is,” the buyer could, nonetheless, still bring a claim under the SWDA for costs of remediating the property for contamination existing at the time of the sale.  

The court reasoned that a cause of action under SWDA is different in that the claim is not a damages claim based on misrepresentation or failure to disclose but instead a statutory claim for cleanup costs, in which the causation issues are not present.   On this basis, the court held that a “responsible party” under the SWDA will be held liable “without the need to establish causation.” 

With respect to CERCLA liability, the majority of the courts have also held that an “as is” clause precludes only claims for breach of warranty, but does not operate to release strict liability arising under a statutory cause of action created by CERCLA.

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