- 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”
- Mortgage lien – a pledge of real property as collateral for a debt or other obligation
- 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
- Easement Appurtenant
- 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”
- Express grant or reservation
- 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”