1.4 Land-Use Controls, Public & Private Restrictions, and Encumbrances
Key Takeaways
- The four government powers are Police power, Eminent domain, Taxation, and Escheat (PETE); only eminent domain requires just compensation
- A nonconforming use is grandfathered but generally cannot be expanded; a variance permits deviation from zoning due to hardship
- Private controls like CC&Rs and deed restrictions run with the land, and where they conflict with zoning the more restrictive rule controls
- Easements run with the land and transfer automatically; appurtenant easements benefit a parcel (dominant/servient tenements) while easements in gross benefit a person or company
- Encumbrances include money liens (mortgage, tax, mechanic's, judgment) and non-money claims (easements, encroachments, deed restrictions); a license is personal and revocable
Two Sources of Control
Ownership is never absolute. Land use is limited by public controls (government powers and regulation) and private controls (agreements among owners). The exam expects you to classify a given restriction as public or private and to distinguish restrictions that limit use from encumbrances that affect title or impose a money claim.
The Four Government Powers — PETE
| Power | What it does | Compensation? |
|---|---|---|
| Police power | Regulate for health, safety, welfare (zoning, building codes) | No |
| Eminent domain | Take private property for public use | Yes — just compensation |
| Taxation | Levy property taxes | No |
| Escheat | Property reverts to the state when owner dies with no heirs/will | No |
Eminent domain is the power; condemnation is the legal process that exercises it. The Fifth Amendment requires 'just compensation,' usually fair market value.
Zoning, Nonconforming Use, and Variances
Zoning is the most common exercise of police power. Key terms:
- Nonconforming use — a use that was legal before a zoning change and is allowed to continue ('grandfathered'). It usually cannot be expanded or rebuilt if destroyed.
- Variance — permission to deviate from zoning due to a genuine hardship (an oddly shaped lot), without changing the zoning itself.
- Special-use (conditional-use) permit — allows a compatible use, like a church or daycare, in a zone where it is not automatically permitted.
- Spot zoning — reclassifying a single parcel inconsistently with surrounding zoning; generally disfavored.
Public vs. Private Land-Use Controls
Land use is shaped by both government (public) and contractual (private) controls, and the exam wants you to sort any restriction into the correct bucket. Public controls flow from the government's police power and include zoning ordinances, building codes, subdivision regulations, environmental laws, and the power of eminent domain (taking private property for public use with just compensation through condemnation). Taxation and escheat (property reverting to the state when an owner dies with no heirs or will) are also public powers, summarized with the mnemonic PETE: Police power, Eminent domain, Taxation, Escheat.
Private controls are created by owners through deed restrictions and CC&Rs (covenants, conditions, and restrictions), commonly enforced by a homeowners or condominium association. When a private restriction and a public zoning rule conflict, the more restrictive of the two governs.
Encumbrances: Liens vs. Non-Money Encumbrances
An encumbrance is any claim or right a third party holds against a property that does not bar transfer but may reduce its value. Encumbrances split into two families. Liens are monetary claims used as security for a debt: mortgage liens, property-tax liens, mechanics' liens for unpaid construction work, and judgment liens. A general lien (such as a judgment) attaches to all of a debtor's property, while a specific lien (such as a mortgage or mechanic's lien) attaches only to one identified parcel.
Non-money encumbrances affect use rather than securing a debt. An easement grants someone the right to use another's land (a utility easement, or an easement appurtenant benefiting a neighboring parcel).
An encroachment is an unauthorized physical intrusion, such as a fence built three feet over the boundary, typically discovered by survey. A license is mere permission to use land that the owner can revoke at will, distinguishing it from an easement, which is a property interest. Priority among liens generally follows recording date, except property-tax and special-assessment liens, which take priority over all others regardless of when recorded.
A gas station has operated for 30 years on a lot that was rezoned residential 10 years ago. The owner wants to keep operating but also add a car wash. What is the status?
Private Controls: CC&Rs and Deed Restrictions
Private restrictions are created by owners, not government. Deed restrictions and subdivision CC&Rs (Covenants, Conditions & Restrictions) limit how property is used — minimum house size, prohibited home businesses, architectural rules. They run with the land, binding all future owners, and are enforced by other owners or the HOA through injunction. Where a private restriction is stricter than zoning, the more restrictive rule controls.
Encumbrances Overview
An encumbrance is any claim, lien, or restriction held by a party other than the owner that affects the property. Encumbrances divide into two groups:
| Type | Examples | Effect |
|---|---|---|
| Liens (money claims) | Mortgage, property tax lien, mechanic's lien, judgment | Claim against value/title for a debt |
| Non-money encumbrances | Easements, deed restrictions, encroachments, licenses | Affect use or physical enjoyment |
Liens can be specific (tied to one property, like a mortgage) or general (against all the debtor's property, like a judgment).
Easements
An easement is a right to use another's land for a specific purpose; it runs with the land and transfers automatically.
- Easement appurtenant benefits an adjoining parcel. The benefited parcel is the dominant tenement; the burdened parcel is the servient tenement (a shared driveway).
- Easement in gross benefits a person or company, not a parcel (a utility line). There is a servient tenement but no dominant tenement.
- An easement by necessity arises when a parcel is landlocked; an easement by prescription arises from open, continuous, hostile use for the statutory period.
A license is merely personal, revocable permission and does not run with the land.
A utility company holds the right to run power lines across a homeowner's backyard. The homeowner sells the property. What kind of right is this, and does it survive the sale?
Encroachments and Liens in Practice
An encroachment is an unauthorized physical intrusion — a fence or eave crossing a boundary line — usually revealed by a survey. Left unchallenged, an encroachment can ripen into a prescriptive easement or adverse possession. A mechanic's lien secures payment for labor or materials supplied to improve the property; its priority often relates back to when work began, ahead of later-recorded claims. At closing, the title search must clear encumbrances so the buyer receives marketable title.