EP 1110-1-24
15 Dec 00
(e) Reversionary Interests. This type of proprietary control is also known as "future
estates". The deed establishes certain conditions that would cause the property to revert back to
the original owner if the conditions cited in the reversionary interest are violated. As such, this
type of institutional control is like an easement, but with the added provision that if the terms of
the institutional control are violated, the property will revert back to the original owner (the
holder of the reversionary interest). The existence of a reversionary interest does not, in itself,
prevent incompatible land uses, but it does provide the means for stopping the incompatible
activities by reverting ownership rights to the original owner if a violation were to occur.
Reversionary interests have been effectively used in the past to control future land use on sites
that contain environmental contamination.
(f) Strengths and Limitations of Reversionary Interests. Reversionary interests have been
used effectively in the environmental context to control land uses. Reversionary interests held
by the government can last a very long time because equitable defenses such as laches, waiver
and estoppel typically do not apply to the Federal Government as they would to private entities
or individuals. Thus, although a reversionary interest does not prevent inappropriate use of a
property, it can serve to halt such activities by reacquisition of the land by the holder of the
reversionary interest.
(2) Possessory Proprietary Controls. A possessory proprietary control means that the
holder of the control retains either a full or partial interest in the future use of the land. Such
controls can be achieved either by retaining ownership or by retaining a major share in a joint
ownership of a property through a limited partnership with others. Such programs have been
used both in the private sector, as well as by the government, where the holder of the possessory
proprietary control wishes to retain some say in the future use of a property without having the
responsibility of complete and total ownership. Limited partnerships are an example of a
possessory proprietary control that has been used in the past to limit future land use.
(3) Strengths and Limitations of Proprietary Controls. The administrative structure and
support staff is usually already in place to enforce the control (although additional funding may
be required). A potential limitation of proprietary controls is that their enforceability is
governed by state property laws. This presents a difficulty common to all proprietary controls in
that property laws vary widely from state to state. Therefore, the specific laws of the state in
which the site is located must be carefully reviewed when using these mechanisms as an
institutional control. Particular attention should be paid to the state's requirements for creating a
restriction that is enforceable and binding on both present and future owners and users.
Currently only 16 states require that deed records used in proving title include information
regarding certain conditions involving hazardous wastes or substances on a site (e.g., sites that
had hazardous waste permits or are on the state hazardous waste site inventory). However, since
most transfers of land are accompanied by a due diligence title search by an attorney or lending
institution, a deed restriction may provide an effective notice to a potential buyer. Even if a
potential owner chooses to ignore this notice and decides to proceed with the purchase of the
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