EP 1110-1-24
15 Dec 00
the property owner with the easement. Generally, only the holder of an easement has
the power to enforce compliance with the terms of the easement. This requires that the
holder remain aware of activities at the property and is kept informed of any proposed
changes in use of the property. If the holder of the easement (e.g., DOD) does not act
on a land use violation once it has been identified, third parties (such as local or county
governments) do not have the authority to enforce the easement.
In the case of OE-contaminated sites where DOD may be the holder of an easement,
but may not have a continuing local presence, periodic site visits would be required to
assure that the property owner complies with the easement. If the holder of the
easement does act, but the courts conclude that the action was not timely, it may be
deemed that the holder of the easement forfeited its rights under the easement.
Generally, however, equitable defenses such as laches, waiver and estoppel (which limit
the timeframe within which enforcement must occur) typically do not apply to the
federal government as they would to private entities. Even so, site visits should be
conducted at predetermined intervals (e.g., annually, semi-annually, every three years,
etc.) so that any violations can be addressed in a timely manner to ensure public safety.
(c) Restrictive Covenants. A restrictive covenant, which is also known as a deed
restriction, is commonly used by the federal government to prohibit certain types of
development, use, or construction on a piece of land where residual contamination does not
allow unrestricted use of the property. Under a restrictive covenant, the government can usually
take legal action to enforce the restriction if the new property owner does not abide with the
development restrictions imposed at the time of sale or lease. A restrictive covenant may be
either affirmative or negative. An example of an affirmative restrictive covenant is the
landowner is required to do something that he/she would otherwise not be required to do. An
example of a negative restrictive covenant is landowner may not do something that he/she is
otherwise normally free to do.
(d) Strengths and Limitations of Restrictive Covenants. One advantage of restrictive
covenants over easements is the flexibility to apply restrictions not only to an individual plot of
land, but also to an entire area. Restrictive covenants tend to be a less desirable method of
control than easements. Restrictive covenants have been controversial in the past because many
were intended to maintain elite neighborhoods and viewed to be racist in their intent. For this
reason, many restrictive covenants have been removed by judicial order. In addition, the
variability of state property laws tends to be greater for restrictive covenants than for easements,
making them more difficult to administer. In general, a covenant does not give the holder the
right to enter and inspect the property to ensure that the owner is complying with the covenant.
Therefore, an easement or some other agreement should also be agreed upon at the time a
covenant is implemented as an institutional control.
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