1.4 Land-Use Controls, Public & Private Restrictions, and Encumbrances

Public Controls: The Four Government Powers (PETE)

Government limits private ownership through four powers, recalled by the acronym PETE:

• Police power lets government regulate for public health, safety, and welfare through zoning, building codes, and environmental rules, with no compensation owed.
• Eminent domain lets government take private property for public use, but only by paying just compensation; the legal process is condemnation.
• Taxation lets government levy property taxes; unpaid taxes become a tax lien, usually first in priority.
• Escheat returns property to the state when an owner dies intestate (without a will) and leaves no heirs.

Trap: Police power is regulation without payment; eminent domain is a taking with payment. Students who confuse the two miss easy points.

Zoning and Relief Mechanisms

Zoning is the most common exercise of police power. It controls use category, density, height, and setbacks. Several relief and exception terms recur on the exam:

When the government's regulation goes so far that it destroys all economic value, the owner may claim a regulatory taking and seek compensation.

Private Controls

Private parties also restrict land use, and these limits are recorded so they run with the land and bind future owners:

• CC&Rs (covenants, conditions, and restrictions) are private rules a developer records against an entire subdivision.
• HOA rules govern community standards and dues; unpaid dues can ripen into a lien in most states.
• Deed restrictions are limits a prior grantor writes into the deed, such as a no-fence covenant.

Where a private restriction is stricter than the public zoning rule, the stricter control governs. A zoning ordinance allowing 35-foot homes does not override a recorded CC&R capping height at 28 feet.

Encumbrances Overview

An encumbrance is any claim, lien, charge, or restriction that burdens title and may reduce value or limit use. Encumbrances divide into two broad families:

1. Money encumbrances (liens): claims that secure payment of a debt, such as mortgages, tax liens, mechanic's liens, and judgment liens.
2. Use encumbrances: restrictions on how land may be used, such as easements, deed restrictions, and encroachments.

The exam-favorite maxim: all liens are encumbrances, but not all encumbrances are liens. An easement burdens title yet involves no debt, so it is an encumbrance that is not a lien.

Easements vs. Licenses

An easement is a nonpossessory right to use another's land for a defined purpose. The two main families:

A license is mere personal permission, revocable at will, and it does not run with the land, for example, permission to hunt or a ticket to enter. Easements may be created by express grant, implication, necessity, or prescription (open, hostile, continuous use for the statutory period), and terminated by release, merger, abandonment, or expiration.

Encroachments and Enforcement

An encroachment is a physical intrusion, such as a fence two feet over the line, that burdens the neighbor's title. Remedies mirror those in the survey section: removal, a granted easement, or a recorded boundary agreement.

Enforcement differs by source. Public controls are enforced by government through fines, stop-work orders, or permit denial. Private controls are enforced by the HOA or by neighboring owners through civil injunction. Before listing, a prudent licensee asks the seller about HOA dues, special assessments, recorded easements, and known encroachments, and delivers HOA documents to buyers early so they can review restrictions and fees.

Liens: General vs. Specific

A lien is a charge against property that secures a debt and is the most heavily tested encumbrance. The exam splits liens two ways:

• General liens attach to all of a debtor's property (judgment liens, federal income-tax liens, estate-tax liens).
• Specific liens attach to one identified property (mortgage liens, property-tax liens, mechanic's liens, special assessments).

Liens are also voluntary (a mortgage the owner agrees to) or involuntary (a tax lien imposed by law). Priority generally follows the date of recording — first in time, first in right — with one major exception: real estate property-tax and special-assessment liens take priority over all other liens regardless of recording date. A mechanic's lien, filed by an unpaid contractor or supplier, often relates back to the date work began or materials were first furnished, which can leapfrog a later mortgage.

Easement Types You Must Distinguish

The exam separates several easement forms. An easement appurtenant benefits an adjoining parcel: the dominant tenement enjoys the right and the servient tenement bears the burden, and the easement runs with the land to future owners. An easement in gross benefits a person or company, not a parcel — a utility's power-line easement is the classic example. An easement by necessity arises when a parcel is landlocked and needs access to a public road.

An easement by prescription is acquired through open, notorious, continuous, and hostile use for the statutory period, similar to adverse possession but conferring a use right rather than ownership. A license, by contrast, is mere permission, is personal, and can be revoked at will.