Real Estate Encumbrances:

encumbrance - a claim or liability against real estate,

held by someone other than the fee owner of the property
that afects the title to the property, and therefore its value.
- does not confer any possessory interest, and therefore is not an estate, and
- does not necessarily prevent the transfer of title.
- can include liens against the property, deed restrictions, easements, and
encroachments
1. Lien
- a claim against the property which serves as collateral for a debt.
- The lien holder has the legal right to go to court to have the property sold to satisfy the debt,
if it is not paid.
- Unpaid real estate taxes or mortgage payments can result in a lien against the property.
- Anyone who works on the property and is not paid can le a mechanics lien against the
property.
- The liens transfer with the property, so if they are not paid when the real estate is sold, then
the new owner becomes liable for the debts.
2. Deed restrictions, !aka conditions, covenants, and restrictions, or CC&Rs"
- are private agreements that restrict the use of the real estate in some way, and are listed in
the deed#hence the name.
- The seller may add a restriction to the title of the property.
$g. developers restrict the parcels of property in a development to maintain a certain
amount of uniformity.
3. Easements
- the right of someone other than a fee owner to use a particular parcel of land for a particular
purpose
#most often it is the right to cross the property.
a. aurtenant easement !aka aurtenance"
- right to use ad%oining property that transfers with the land
- always transfers with the land unless the owner of the dominant tenement releases it
dominant tenement - the parcel of land that benets from the easement
servient tenement - the parcel of land that provides the easement
b.easement in !ross
- an individual interest to use the land#it benets a person or an organi&ation, in contrast to
an appurtenant easement, which benets the land
- personal easement in gross is used to allow a neighbor to cross someone else's land, but
unlike an appurtenant easement, does not transfer with the property and ends when the owner
of the easement dies
commercial easements in !ross
( held by businesses, such as railways and phone companies so that they can
conduct business
( can be assigned or conveyed
utilit" easements
( allow utilities to run electric wires or pipelines across properties, are also
easements in gross
- #he Creation o$ Easements
created by either
). express agreement or
- *n many cases, an owner creates an easement for himself when selling a parcel of
his land or gives an easement to a buyer of the property to pass over his land
because of convenience or necessity
- +ne of the rights of owning land is to be able to enter or leave it, but some
parcels of land are isolated from public thoroughfares by other private properties.
*n these cases, an appurtenant easement is created by a court order as an
easement b" necessit", because the dominant tenement owner has no other
way of entering or leaving his property
,. by implication
- -ometimes the easement is created by implication, such as through long-time
use or by prescription.
%. easement b" rescrition
.created through long-term use, where the owner knows about the easement, but
did not prevent its use.
.The length of time re/uired is usually set by state law, typically )0 to ,) years,
and the use must have been continual and without the owner's approval, but with
the owner's knowledge. The re/uired time period to establish the easement by
prescription can be accomplished through tac&in!, where successive owners#
successors in interest#of the dominant tenement continue to use the easement
continually.
'. easement b" condemnation
. created by eminent domain#owners of the servient tenement must, however, be
compensated for providing the easement.
C. art" easement
. created by written agreement between parties concerning a common boundary,
such as a shared party wall, a fence, or a driveway, especially between ad%acent
townhouses or row houses.
- #he #ermination o$ Easements
easement can be terminated in numerous ways, especially when the reason for the
easement no longer exists, or it makes no sense,
). when both dominant and servient tenements are bought by the same owner
!termination b" mer!er",
,. when the use of the easement changes signicantly, for instance, by greatly
increased tra1c,
2. when the owner of the dominant tenement releases the easement.
3. The easement may also terminate if it is abandoned.
... *n some cases, certain legal actions may be re/uired before the easement is
actually terminated.
((( Licenses
- A license, unlike an easement, is having the permission of the owner#the licensor#to
enter his land for a specic purpose.
- Unlike an easement, the license
). can be rescinded at any time
,. will terminate upon the death of either the licensee or the licensor,
2. will also terminate if the licensor sells the land.
- 4ence, although a license is similar to an easement, a license is not actually an
encumbrance on the real estate and does not transfer with the title
). Encroachments
- an extension of some physical structure, such as a building, driveway, fence, or tree over the
property lines from an ad%oining property.
- it can afect the marketing of the title, and should be noted in a listing agreement or sales
contract
- it can best be determined by a sot surve"(((
...a survey showing the locations, si&es, and shapes of the buildings on a lot
!5isual inspection is not as accurate and should not be relied upon if there is a /uestion
of an encroachment"
- The owner of the land sub%ect to the encroachment can either sue for damages or have the
structure extending over the property lines removed or trimmed back.
- 4owever, the owner of the encroaching structure may have an easement by prescription if
the time period of the encroachment exceeds the prescriptive time stipulated by state law for
an easement by prescription.