Private Restrictions on Ownership

  • Private versus Public Restrictions
    • Private restrictions are non-governmental limitations on the owner’s ability to use a property.
    • Public restrictions are governmental limitations on the owner’s ability to use a property
    • Collectively, such restrictions are called “encumbrances”
    • This chapter focuses on private restrictions. The next chapter focuses on public restrictions.
  • Covenants, Conditions, and Restrictions (CC&Rs)
    • Private encumbrances that limit the way a property owner can use a property
    • Recorded in public record
    • Enforceable by parties who benefit from the limitations
    • Generally “run with the land”
    • Close-Ups & Legal Highlights
      • “Meadow Brook Ranch Use Covenants”
      • “Validity of Restrictive Covenants”
      • “Restrictive Covenant Disputes”
  • Liens
  • A legal claim held by a lienor against a property owner’s property as security for a debt
    • General lien – a lien against all property owned by lienee
    • Specific lien – lien against a specific property item (a mortgage on a shopping center, for example)
      • Mortgage lien – a pledge of real property as collateral for a debt or other obligation
        • A specific lien, usually voluntarily given by property owner
        • Mortgagor is the borrower
        • Mortgagee is the lender
        • Foreclosure is the process used to enforce the pledge if the mortgagor defaults
      • Mechanic’s lien
        • Security interest held by someone who supplies materials or labor for work of improvement and is not paid by the property owner for the materials or labor as agreed
        • May lead to foreclosure if debt is not paid
        • See Legal Highlight “A Cautionary Tale on Mechanics’ Liens”
  • Easement
    • Right to use someone else’s property in a specified manner.
    • Types of Easements
      • Easement Appurtenant
        • Dominant estate
        • Servient estate
        • See Figure 3.1 Easement Appurtenant Created by Joint Driveway
      • Easement in gross
    • Creation of Easements
    • Creation of Easements by:
      • Express grant or reservation
        • See Figure 3.2 Easement Created by Express Grant
        • See Figure 3.3 Easement Appurtenant Created by Implied Reservation
      • Implication
      • Prescription
        • See Legal Highlight “Prescriptive Easement”
        • See Legal Highlight “The Case of the Landlocked Parcel”
      • Nature of Easements
      • Permanent in nature – easements “run with the land”
        • When dominant parcel is sold the new owner benefits from the easement
        • When servient tenement is sold the new owner’s property is encumbered by the easement
      • License – a revocable personal privilege to use land for a particular purpose
      • Termination of Easements
        • Agreement
        • Merger
        • Abandonment
      • A Relatively New Type of Easement: The  Conservation Easement
        • A “negative” easement that prevents rather than provides a right to use a property in a specified manner
        • Increasingly used for historical preservation or environmental protection
          • See Close-Up “Use of Conservation Easements”
  • Profits & Encroachments
    • Profit – profit a prende – a non-possessory interest that permits the holder to remove specified resources from the land
    • Encroachment – an unauthorized invasion or intrusion of a fixture, building, or other improvement onto another owner’s property.
      • May negatively impact value
      • Best detected by boundary survey
  • Adverse Possession
    • Process by which title to land is transferred from its legal owner to someone who openly possesses the land for a statutory time period without the permission of the owner.
    • Requirements to obtain title by adverse possession
      • Actual and exclusive
      • Open and notorious
      • Hostile
      • Continuous
      • Under a claim of right
      • Statutory period

See Legal Highlight “Adverse Possession”