EP 1110-1-24
15 Dec 00
deed restriction. An entity that is not privy to the land may have the power to enforce a deed restriction
if, at the time of the purchase, the buyer was made aware of this and it is written in the deed.
(d) The restriction must "touch and concern the land". This means that the land or the use of the
land must be the focus of the restriction. Generally, these types of restrictions devalue the owners legal
interest in the land in some way. Promises that are personal in nature and only concern human activities
on the land are least likely to be enforceable.
(3) More specifically, land transfer documents for sites that may contain OE should address the
following issues:
(a) A stipulation of the permissible end uses consistent with the clearance depth and a statement
that any future use that is inconsistent with these use restrictions will present explosive hazards. If the
clearance depth was less than the DDESB default for commercial/residential/ utility construction activity
(see Table 3.2), the land transfer documents must include a requirement to notify USACE before any
commercial/residential/utility construction activity. Transfer documents should also require that no
excavation be accomplished until USACE has either granted permission to excavate or has come to the
site to perform nonintrusive geophysical surveys and/or remediate the property prior to or in conjunction
with excavation.
(b) If an OE clearance depth was determined using site specific information or penetration data,
the deed should prohibit soil disturbance below the OE clearance depth.
(c) If the clearance depth was based on DDESB defaults, the future land use will be restricted to
that depth commensurate with the chosen default depth (see paragraph 3-5).
(d) The transfer documents will detail the amount and type of known or suspected OE, describe
the OE response actions taken during the investigatory and remedial stages of the project, and, if
applicable, provide an estimate of the type and amount of OE remaining on the site.
(e) If OE is believed to be located above the frost line, but below the removal depth, the land
transfer documents will provide the USACE the right of access to the property in order to conduct
periodic surveys. The length of time that this right of access will be necessary will be determined by
USACE based on site specific information.
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