EP 1110-1-24
15 Dec 00
(1) Nonpossessory Proprietary Controls. Nonpossessory proprietary controls means the
holder of these interests has a right to use or restrict use of a piece of land, but does not have the
right to actually possess it. Examples of this type of control include easements, restrictive
covenants, and reversionary interests.
(a) Easements. The most common nonpossessory proprietary control is known as an
easement. An easement is an interest in a piece of land that entitles its holder to use the land or
restrict the use of the land owned by another. Easements may be categorized as appurtenant or
gross; affirmative or negative; or statuatory.
Appurtenant Easement. An easement is considered appurtenant if the holder is the
owner of nearby land which benefits from the easement. For example, this occurs when
a neighbor is allowed to walk across another person's property to access the beach.
Gross Easement. A gross easement is one in which the holder, usually a company or
public entity, does not own the land, but has the ability to use it. For example, this
occurs when a gas company is allowed to lay a gas line on another person's property.
An affirmative easement allows the holder of the easement to use the land in a way that
otherwise they could not. This is the most common type of easement. An example of
an affirmative easement is, again, the gas company that has the ability to lay a gas line
on another person's property.
A negative easement prohibits the use of the land in a manner that would otherwise be
legal. An example of a negative easement is the owner of a hazardous waste landfill
who is prohibited from developing the property for another use because of the current
use of the site.
Some states have developed statutory easements, including conservation easements,
which restrict the property use to one that is compatible with conservation of the
environment or scenery. In the particular case of sites contaminated with OE, an
easement may be enacted that would restrict the new property owner to land uses that
are compatible with the level of OE clearance performed during the removal action.
Easements have been used under CERCLA Section 120(h) to ensure that the federal
government has access to a site to conduct additional response actions or to perform any
necessary operations and maintenance (O&M) at a site that is undergoing active
remediation of residual contamination.
(b) Strengths and Limitations of Easements
As with all proprietary controls, the effectiveness of an easement to control appropriate
use of a property containing residual contamination is dependent on the compliance of
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