1.4 Land-Use Controls, Public & Private Restrictions, and Encumbrances
Key Takeaways
- Public land-use controls flow from police power: zoning, building codes, master plans, subdivision regulations, and environmental laws.
- The four government powers over land are Police power, Eminent domain, Taxation, and Escheat (PETE).
- Private controls are deed restrictions and CC&Rs (restrictive covenants), often enforced by HOAs; the stricter of public or private control governs.
- An encumbrance is any claim, lien, or restriction on title; liens affect money/value while easements and encroachments affect use.
- A nonconforming use ('grandfathered') predates a zoning change and is generally allowed to continue but not expand.
1.4 Land-Use Controls, Public & Private Restrictions, and Encumbrances
Ownership rights are never absolute. Land use is limited by public (government) controls and private controls, and title may carry encumbrances. The exam wants you to classify a restriction into the right bucket and know who enforces it.
The four government powers (PETE)
Government holds four inherent powers over privately owned land:
| Power | What it does |
|---|---|
| Police power | Regulate use for health, safety, morals, and general welfare (zoning, codes) — no compensation owed |
| Eminent domain | Take private property for public use through condemnation, paying just compensation |
| Taxation | Levy real property (ad valorem) taxes; nonpayment leads to a tax lien |
| Escheat | Property reverts to the state when an owner dies with no heirs and no will |
The most-tested contrast: police power requires no payment to the owner (a zoning change is not a taking), while eminent domain requires just compensation because the government actually takes the property. Inverse condemnation occurs when an owner sues the government because its action effectively took the property without a formal taking.
Zoning and related public controls
Under police power, local governments enforce:
- Zoning ordinances — separate land into districts (residential, commercial, industrial, agricultural) and regulate density, height, and setbacks.
- Building codes and certificates of occupancy — set construction standards and confirm a structure may be occupied.
- Master/comprehensive plans and subdivision regulations — guide long-term growth and plat approval.
When an owner needs relief from zoning, three tools appear on the exam:
| Tool | Purpose |
|---|---|
| Variance | Permission to deviate from a rule due to hardship (e.g., an odd-shaped lot needs a smaller setback) |
| Conditional/special use permit | Allows a use beneficial to the public within a zone (e.g., a church or daycare in a residential zone) |
| Nonconforming use | A use that lawfully existed before the zoning change — "grandfathered," allowed to continue but generally not enlarged, rebuilt if destroyed, or resumed after abandonment |
Spot zoning (reclassifying one parcel inconsistently with surrounding zoning to benefit a single owner) is generally improper. Downzoning reduces allowed density or intensity.
Private controls: deed restrictions and CC&Rs
Private land-use controls are created by owners and developers, not government:
- Deed restrictions — limits written into a deed (e.g., "single-family residences only").
- Restrictive covenants / CC&Rs — Conditions, Covenants, and Restrictions recorded for a whole subdivision, usually enforced by a homeowners association (HOA) through liens or injunctions.
Key rule: when a public control and a private control both apply, the more restrictive one governs. If zoning allows a 35-foot house but the CC&Rs cap height at 28 feet, the owner must build no taller than 28 feet. Note that private deed restrictions can never be used to discriminate in violation of fair housing law; such covenants are void and unenforceable.
Encumbrances overview
An encumbrance is any right or interest a non-owner holds in the property that diminishes its value or limits its use. Encumbrances split into two families:
| Affects money / value | Affects physical use |
|---|---|
| Liens (mortgage, tax, mechanic's, judgment) | Easements |
| Encroachments | |
| Deed restrictions / licenses |
Liens, easements, and encroachments
Liens are monetary claims securing a debt. A mortgage lien is voluntary; tax and mechanic's liens are involuntary. Tax liens generally take priority over most other liens. A specific lien attaches to one property (mortgage, mechanic's); a general lien attaches to all of a debtor's property (a judgment lien).
Easements grant a right to use another's land:
- Easement appurtenant — benefits an adjoining parcel; there is a dominant tenement (benefits) and a servient tenement (gives up use). It "runs with the land" and transfers with the property.
- Easement in gross — benefits a person or company, not a parcel (a utility line easement). There is a servient estate but no dominant estate.
- Easement by necessity — created when a parcel is landlocked and needs access.
- Easement by prescription — acquired through open, continuous, hostile use over the statutory period.
An encroachment is an unauthorized physical intrusion (a fence or roof eave extending onto a neighbor's lot). Encroachments are usually revealed by a survey and can cloud title or block a sale until resolved.
Worked example: A buyer's survey shows the seller's detached garage extends 2 feet over the side lot line onto the neighbor's parcel. This is an encroachment — an encumbrance affecting use and marketability — and should be cured (relocation, easement, or boundary agreement) before closing, not ignored as a minor measurement issue.
Lien priority and how easements end
Priority decides who is paid first in a foreclosure or sale. The general rule is "first in time, first in right" by recording date — except that property-tax and special-assessment liens jump ahead of all others, including a first mortgage recorded earlier. A subordination agreement can voluntarily reorder priority (a lender agrees to take second position behind a new loan).
Easements are not permanent fixtures of title; they can terminate by:
| Method | How it happens |
|---|---|
| Merger | One owner acquires both the dominant and servient parcels |
| Release | The benefited party releases the easement in writing |
| Abandonment | Non-use plus clear intent to abandon |
| End of necessity | A landlocked parcel gains another legal access |
| Expiration | A time-limited easement runs out |
License vs. easement (a tested contrast)
A license is mere permission to use land (a ticket to park, permission to fish) — it is personal, non-transferable, and revocable at will. An easement is an interest in land that generally survives a sale and cannot be revoked unilaterally. The exam plants "revocable permission" language to signal a license, not an easement, and "runs with the land" language to signal an easement appurtenant.
A city rezones a neighborhood from commercial to residential. A corner grocery store that lawfully operated there for 15 years before the change wishes to keep operating. Which concept allows it to continue?
A utility company holds a recorded right to run power lines across the back of a homeowner's lot. The right benefits the utility company itself, not any neighboring parcel. What type of interest is this?