1.4 Land-Use Controls, Public & Private Restrictions, and Encumbrances
Key Takeaways
- Government holds four powers (PETE): Police power, Eminent domain, Taxation, Escheat; only eminent domain requires just compensation.
- Eminent domain is the power; condemnation is the process; inverse condemnation is owner-initiated.
- Zoning is police power; relief comes via variance, special-use permit, and grandfathered nonconforming use; spot zoning is illegal.
- When public zoning and private deed restrictions/CC&Rs conflict, the more restrictive provision controls.
- Encumbrances include liens (money) and non-money items like easements, encroachments, and licenses; easements appurtenant run with the land.
Public vs. Private Controls
Land use is limited by both government (public) controls and agreements among private parties (private controls). The national exam frequently asks which category a given restriction falls into and which authority prevails when two rules conflict. The general rule: the more restrictive provision governs, whether it comes from zoning or a private deed restriction.
The Four Government Powers: PETE
Government retains four inherent powers over privately owned land, memorized as PETE:
| Power | What it allows |
|---|---|
| Police power | Regulate use for public health, safety, welfare (zoning, building codes) — no compensation owed |
| Eminent domain | Take private property for public use through condemnation — just compensation required |
| Taxation | Levy property taxes; nonpayment can lead to a tax lien and sale |
| Escheat | State takes property when an owner dies with no heirs and no will |
Eminent domain is the power; condemnation is the process used to exercise it. The Fifth Amendment requires just compensation, generally fair market value, so an owner is made whole. When the government action effectively takes property without a formal proceeding — for instance, repeated flooding caused by a public project — the owner may bring an inverse condemnation suit to force payment. Police power, by contrast, owes no compensation because it merely regulates rather than takes.
Zoning and Its Relief Valves
Zoning is an exercise of police power. Common relief mechanisms:
- Variance — permission to deviate from a zoning rule due to hardship (e.g., a lot too narrow for required setbacks).
- Special-use (conditional-use) permit — allows a use otherwise not permitted but compatible (a church or daycare in a residential zone).
- Nonconforming use (grandfathering) — a lawful pre-existing use that predates new zoning may continue but usually cannot be expanded or rebuilt if destroyed.
- Spot zoning — reclassifying a single parcel inconsistently with surroundings; generally illegal.
Private Controls: CC&Rs and Deed Restrictions
Deed restrictions and CC&Rs (Covenants, Conditions & Restrictions) are private limitations placed by a developer or seller — for example, minimum house size or a ban on outbuildings. They are enforced by neighbors or an HOA, not the government. When a deed restriction is more restrictive than zoning, the deed restriction controls; when zoning is more restrictive, zoning controls. The stricter limit always wins.
Encumbrances
An encumbrance is any claim, lien, or restriction that affects title but does not necessarily prevent transfer. Encumbrances divide into two families:
- Liens — monetary claims against the property (mortgages, tax liens, mechanic's liens, judgment liens).
- Non-money encumbrances — easements, encroachments, deed restrictions, licenses, and profits.
Easements
An easement is the right to use another's land for a specific purpose. It is a non-money encumbrance that limits the servient owner's exclusive use but does not transfer ownership.
| Type | Description |
|---|---|
| Easement appurtenant | Benefits an adjacent parcel; involves a dominant tenement (benefited) and servient tenement (burdened); runs with the land |
| Easement in gross | Benefits a person or company (a utility line), not a parcel; no dominant estate |
| Easement by necessity | Created when a landlocked parcel needs access to a public road |
| Easement by prescription | Acquired by open, notorious, continuous, hostile use for the statutory period |
An encroachment is an unauthorized physical intrusion onto a neighbor's land (a fence, eave, or driveway over the line) and is typically revealed by a survey; left unchallenged it can ripen into a prescriptive easement. A license is mere revocable permission to do something on another's land (a ticket to park or to hunt) and, unlike an easement, can be withdrawn by the grantor at any time. Easements terminate by merger (one owner acquires both parcels), release, abandonment, or expiration of necessity.
A city takes private land to build a highway and pays the owner fair market value. Which government power is being exercised, and what is the process called?
Zoning permits a 3-story building, but a recorded deed restriction limits the parcel to 2 stories. How tall may the owner build?
Exam Traps
- Eminent domain is the power; condemnation is the process; inverse condemnation is when an owner sues because government action effectively took the property without formal proceedings.
- An easement appurtenant runs with the land and transfers with sale; an easement in gross does not attach to a parcel.
- A license is revocable; an easement is not — do not confuse them.
- Liens are money encumbrances; easements and encroachments are non-money encumbrances. All are encumbrances.
Encroachments, Liens, and Profits
Beyond easements, the exam tests several other encumbrances:
- Encroachment — an improvement (a fence, a roof overhang) that physically intrudes onto a neighbor's land. It is discovered by a survey and can cloud title.
- License — a revocable, personal permission to use land (a ticket to park). Unlike an easement, it is not an interest in land and ends at will.
- Lien — a monetary encumbrance securing a debt (covered in Chapter 2).
- Profit (profit a prendre) — the right to take something from the land, such as timber or minerals.
Easement Types Compared
| Easement | Created for | Runs with land? |
|---|---|---|
| Appurtenant | Benefits an adjacent parcel (dominant tenement) | Yes, transfers with the land |
| In gross | Benefits a person/utility, not a parcel | Personal; utility easements are common |
| By necessity | Landlocked parcel needs access | Yes |
| By prescription | Long, open, hostile use over a statutory period | Yes |
Exam trap: A license is revocable and personal; an easement is an interest in land that usually survives a sale.
A neighbor's newly built garage extends 18 inches over the boundary onto the adjoining lot. What is this condition called, and how is it typically discovered?