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

Land-Use Controls, Restrictions, and Encumbrances

Ownership is never absolute. Government and private parties both limit how an owner may use land. The exam splits these into public controls, private controls, and encumbrances.

Public Land-Use Controls: P-E-T-E

The four governmental powers over private property are remembered as P-E-T-E:

Trap: Zoning is police power (no payment owed). When the government takes the land for a road, that is eminent domain and just compensation is owed. Students confuse the two because both restrict the owner; the deciding factor is whether the owner keeps title.

Zoning and Relief Mechanisms

Zoning classifies land (residential, commercial, industrial, agricultural). When an owner needs to deviate, three concepts appear:

• Nonconforming use ("grandfathered"): a use that was legal before the zoning changed and is allowed to continue. It usually cannot be expanded or rebuilt if destroyed.
• Variance: permission to deviate from a zoning requirement (e.g., a setback) when strict enforcement causes a hardship unique to that parcel.
• Conditional use / special-use permit: an allowed exception for a use that benefits the public within a zone (a church or school in a residential zone).

Trap: A nonconforming use predates the rule (backward-looking). A variance and special-use permit are granted going forward (forward-looking).

Private Land-Use Controls

Private parties restrict use through deed restrictions and CC&Rs (covenants, conditions & restrictions) recorded by a subdivision developer or HOA. They are enforced by a court injunction (and sometimes damages), not by the government.

The stricter rule governs. If zoning allows a 35-foot building but the recorded CC&Rs cap height at 25 feet, the owner must obey 25 feet. Whenever a public rule and a private rule conflict, the more restrictive one controls.

Encumbrances

An encumbrance is any claim, lien, charge, or right that affects or limits title. Encumbrances split into two families:

Liens can be voluntary (mortgage) or involuntary (tax lien), and specific (one property) or general (all of a debtor's property, like a judgment).

Easements

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

• Easement appurtenant: benefits an adjacent parcel. The benefited parcel is the dominant tenement; the burdened parcel is the servient tenement. It runs with the land — it transfers automatically to new owners.
• Easement in gross: benefits a person or company, not a parcel — there is no dominant tenement. Utility and railroad easements are the classic examples.

An easement by necessity arises when a parcel is landlocked. An easement by prescription is gained through open, continuous, hostile use for a statutory period (similar to adverse possession but it grants use, not ownership).

License vs. Easement, and Encroachments

• A license is mere permission to use land (a ticket to park in a lot). It is revocable, personal, and does not run with the land — unlike an easement.
• An encroachment is an unauthorized physical intrusion onto another's land — a fence, eave, or driveway crossing the boundary. An encroachment is discovered by a survey and, if left unchallenged long enough, can ripen into a prescriptive easement or an adverse-possession claim.

Worked Scenario

A buyer is purchasing a vacant lot zoned to allow a 30% lot coverage. The recorded subdivision CC&Rs limit coverage to 25%, and a recorded utility easement in gross runs 10 feet along the rear line. The lot is 10,000 sq ft.

• Maximum buildable footprint = 10,000 × 25% = 2,500 sq ft (the stricter CC&R, not the 30% zoning, controls).
• The 10-foot rear utility easement (in gross, no dominant tenement) further limits where the 2,500 sq ft may sit — you cannot build over the utility company's easement.

The takeaway: stack the most restrictive public and private controls and respect every recorded encumbrance before estimating what can actually be built.

How Easements Are Created and Terminated

The exam tests both ends of an easement's life:

An easement can terminate by merger (one owner buys both dominant and servient parcels), release, abandonment, or expiration of its stated purpose. Merger trap: when the dominant and servient tenements come under one owner, the easement is extinguished and does not automatically revive if the parcels are later split again.

Putting Public and Private Controls Together

A professional reads a parcel's limitations as layers. First the public layer: is the use permitted by zoning, and do building codes or environmental rules (wetlands, floodplain, lead-paint, setback) apply? Next the private layer: do recorded CC&Rs, deed restrictions, or HOA rules add stricter limits? Then the encumbrance layer: liens to clear at closing, easements that dictate where structures may sit, or encroachments a survey would reveal. Whenever two limits conflict, the more restrictive one wins.

The right exam habit is to never assume zoning alone defines what an owner may do. A parcel legally zoned for a duplex may still be unbuildable because of a recorded restriction, a utility easement crossing the only buildable area, or an environmental control. Reading every layer is what separates a passing answer from a guess.