2.3 Legal Descriptions and Encumbrances

Methods of Legal Description

A street address is not a legal description. To convey or record property, one of three precise methods is used:

Metes and Bounds

The oldest method, used heavily in original-survey states and parts of Florida. Metes means distances and bounds means directions. The description begins at a point of beginning (POB), traces the boundary by distances, compass directions, and monuments (natural or artificial markers), and must close by returning to the POB. If it does not return to the POB, the description is defective.

Lot and Block (Recorded Plat)

The most common method in subdivisions. A developer records a plat map dividing land into numbered lots within blocks. A parcel is then described simply by lot, block, subdivision name, and the plat book and page where the map is recorded — for example, "Lot 7, Block C, Sunset Acres, as recorded in Plat Book 12, Page 45."

Government (Rectangular) Survey System

The rectangular survey system (also called the government survey or public land survey) describes land using a grid of imaginary lines:

• Principal meridians run north–south; base lines run east–west. These intersect to anchor the grid.
• Townships are formed by township lines (running east–west, measured by tiers north or south of the base line) and range lines (running north–south, measured by ranges east or west of the meridian).

The key measurements tested on the exam:

Sections are numbered 1–36 in a boustrophedonic (back-and-forth) pattern starting in the northeast corner. To compute acreage in a partial section, multiply the fractions: "the NW 1/4 of the SE 1/4" = 1/4 × 1/4 × 640 = 40 acres.

Encumbrances: Liens

An encumbrance is any claim, charge, or right held by someone other than the owner that limits or burdens the property. It runs with the land and survives a change of ownership. The major categories are liens, easements, encroachments, and deed restrictions.

A lien is a money encumbrance that uses the property as collateral for a debt. Liens are classified two ways:

• General vs. specific — a general lien attaches to all of a debtor's property (judgment liens, estate/inheritance tax liens); a specific lien attaches to one identified property (mortgage, property-tax lien, mechanic's lien).
• Voluntary vs. involuntary — a voluntary lien is created by the owner's action (a mortgage); an involuntary lien is imposed by law without consent (tax lien, mechanic's lien, judgment lien).

Lien Priority

Priority generally follows "first to record, first in right," with one major exception: real property tax and special assessment liens take priority over all other liens, regardless of when they were recorded. This is why unpaid property taxes can wipe out a mortgage at a tax sale.

Easements, Encroachments, and Deed Restrictions

An easement is the right to use another's land for a specific purpose. Two main types:

• Easement appurtenant — benefits an adjoining parcel and runs with the land. The dominant tenement enjoys the benefit; the servient tenement is burdened. It transfers automatically to new owners of the dominant parcel.
• Easement in gross — benefits a person or entity rather than a parcel (e.g., a utility company's power-line easement). Commercial easements in gross are assignable; personal ones end with the holder.

Creation of easements: by express grant or reservation (in a deed), by necessity (a landlocked parcel needing access), by prescription (open, continuous, hostile use for the statutory period), or by implication. Termination occurs by merger (one party owns both parcels), release, abandonment, or expiration of purpose.

An encroachment is an unauthorized physical intrusion — a fence, driveway, or roof overhang — extending across a boundary onto a neighboring parcel; a survey reveals it, and it can ripen into a prescriptive easement if left unchallenged.

Deed restrictions (restrictive covenants) are private limits placed on land use by a deed or subdivision declaration — for example, minimum square footage or a ban on commercial use. Private deed restrictions are enforced by other owners through injunction, and where they conflict with zoning, the more restrictive provision controls.

Liens vs. Easements vs. Encroachments — the Distinction Tested

Students often confuse these because all three are encumbrances, but they burden the property in different ways:

A lien affects an owner's ability to convey clear title and collateral value; an easement affects how the land may be used; an encroachment affects the physical boundary and can cloud title. On the exam, watch for the word "physical structure" — that signals an encroachment rather than an easement or a lien.