Land Use Controls and Encumbrances

Land use controls guide how property can be used. Encumbrances are claims or restrictions on property that affect value or transfer. This section combines the two because both limit how land can be used.

Public Controls (Government Powers)

A common memory aid is PETE:

• Police power - Zoning, building codes, and safety regulations
• Eminent domain - Government taking with just compensation
• Taxation - Property taxes and tax liens
• Escheat - Property reverts to the state when an owner dies without heirs

Zoning and Land Use Planning

Zoning defines how land can be used and what can be built. It also sets density, building height, and setback requirements.

Key zoning concepts:

• Nonconforming use - A property that was legal before zoning changed.
• Variance - Permission to deviate from zoning rules due to hardship.
• Special use permit - Allowed use with conditions.
• Spot zoning - Zoning a small area differently from surrounding uses; often controversial.

Zoning protects property values and promotes orderly growth. It also affects highest and best use.

Private Controls and Encumbrances

Private controls are limits placed by private parties and recorded in public records.

• CC&Rs - Covenants, conditions, and restrictions recorded in deeds
• HOA rules - Community standards, dues, and restrictions
• Deed restrictions - Private limits placed by a prior owner

These controls can limit exterior paint colors, fence height, or rental rules. They run with the land and bind future owners.

Easements, Licenses, and Encroachments

Easement - A right to use another person's land for a specific purpose. Easements generally run with the land.

License - Temporary permission to use land. It is personal and revocable.

Encroachment - A physical intrusion on another's land, such as a fence or driveway over the property line.

Easement Types

Table: Easement Types

Easements can be created by express agreement, implication, necessity, or prescription.

Liens as Encumbrances

Liens are encumbrances because they attach to property and affect transfer.

Common liens include:

• Property tax liens
• Mortgages and deeds of trust
• Mechanics liens
• Judgment liens

If a lien is unpaid, it can lead to foreclosure or forced sale.

Mini-Case: Encroachment Discovery

A buyer orders a survey and finds that the neighbor's fence crosses the property line by two feet. This is an encroachment. The buyer can request a boundary agreement, an easement, or removal of the fence before closing.

Exam Application

If a question asks which power allows zoning, the answer is police power. If it asks about a right to cross land, the answer is easement. If the question mentions a revocable permission, the answer is license.

Exam Tip: Easements usually transfer with the land, but licenses do not.

How Encumbrances Affect Value

Encumbrances can reduce value or change how a property can be used. A buyer who plans to build a pool may be unable to do so if a utility easement runs across the backyard. A conservation easement can restrict development entirely.

Terminating Easements

Easements do not always last forever. Common termination methods include:

• Release - The easement holder signs a release.
• Merger - The dominant and servient parcels become the same owner.
• Abandonment - The easement holder clearly abandons use.
• Expiration - The easement was created for a limited time.

Liens vs. Encumbrances

All liens are encumbrances, but not all encumbrances are liens. A lien is a claim for payment. An easement is a use right and can exist even if no money is owed.

HOA and Deed Restriction Enforcement

Homeowners associations can enforce rules and collect dues. Unpaid dues can become liens in many states. Deed restrictions may be enforced by the HOA or by other owners in the subdivision.

Practical Listing Guidance

Before listing, ask the seller about HOA rules, easements, and special assessments. Buyers should receive HOA documents early so they can review restrictions and fees.

Exam Application Check

If the question asks which power allows zoning, answer police power. If it asks about a right to cross land, answer easement. If it asks about a revocable permission, answer license.

Enforcement and Remedies

Public controls are enforced by local governments. Violations can lead to stop-work orders, fines, or denial of permits. Private controls are enforced by HOAs or by other owners through civil action.

Eminent Domain and Compensation

When the government takes property for public use, it must pay just compensation. If a property is damaged by a public project without formal taking, the owner may claim inverse condemnation.

Encroachment Remedies

If an encroachment is discovered, common solutions include:

• Relocation or removal of the encroaching structure
• A boundary agreement between owners
• An easement allowing the encroachment to remain

Exam Application Check

If a question mentions a nonconforming use, remember it is legal but does not match current zoning. If a question mentions a variance, the owner is asking for permission to deviate from zoning rules due to hardship.