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

Public Controls: The Four Government Powers (PETE)

Government limits private land through four powers — PETE:

• Police power — the right to regulate for public health, safety, morals, and welfare. Source of zoning, building codes, master plans, subdivision regulations, and environmental laws. No compensation is paid because nothing is taken.
• Eminent domain — the power to take private property for public use through a condemnation action, but only with just compensation (5th Amendment).
• Taxation — the power to levy real estate taxes and special assessments.
• Escheat — property reverts to the state when an owner dies intestate (no will) and with no heirs.

Zoning examples include classifications (residential, commercial, industrial), setbacks, and density. A variance permits a use that deviates from zoning due to hardship; a nonconforming use ("grandfathered") existed legally before the zoning changed and may continue.

Two more zoning tools recur on the exam. A special (conditional) use permit allows a use that the zoning anticipates as compatible under conditions — a church or school in a residential zone. Spot zoning is the illegal practice of rezoning a single parcel for the owner's benefit inconsistent with the surrounding plan.

A taking under the Fifth Amendment can be physical (eminent domain) or regulatory — when a regulation goes so far it destroys economic use, the owner may demand compensation as if the property were condemned. Police power regulation that merely limits use, however, requires no payment, which is the key public-control distinction the exam draws between regulation and condemnation.

Private Controls and the Most-Restrictive Rule

Owners and developers impose private limits:

• Deed restrictions / restrictive covenants — limitations written into a deed (e.g., "single-family use only").
• CC&Rs — Covenants, Conditions & Restrictions recorded by a developer for a subdivision, often enforced by an HOA.

When public zoning and a private covenant conflict, the more restrictive provision controls. If zoning allows a 35-foot building but the CC&Rs cap height at 25 feet, the 25-foot limit applies.

Encumbrances Overview

An encumbrance is any claim, right, or interest held by someone other than the owner that affects title or use. It does not prevent transfer, but it travels with the property. Encumbrances divide into two families:

Easements, Encroachments, and Lien Priority

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

• Easement appurtenant — benefits an adjoining parcel. The benefited parcel is the dominant tenement; the burdened parcel is the servient tenement. It runs with the land and binds future owners.
• Easement in gross — benefits a person or company, not a parcel (a utility's power-line easement). Commercial easements in gross are assignable.
• Easement by prescription — acquired by open, continuous, hostile use for a statutory period.

An encroachment is an unauthorized physical intrusion onto a neighbor's land (a fence over the line); a survey reveals it. A license is mere personal permission to use land, revocable and not an interest in the property.

Worked Priority Example

General rule: liens rank by recording date ("first in time, first in right"), with exceptions: real-estate tax and special-assessment liens take priority over all other liens regardless of date.

A property has: (1) a mortgage recorded 2019, (2) a mechanic's lien recorded 2022, (3) a property-tax lien for 2024. Payment order at foreclosure: the 2024 tax lien first, then the 2019 mortgage, then the 2022 mechanic's lien.

Trap: Candidates assume strict chronological order. Tax liens jump ahead of even an earlier-recorded mortgage — that is the most-tested exception.

Specific vs. General Liens

Liens are further classified by reach:

A voluntary lien (a mortgage) is created by the owner's choice; an involuntary lien (a tax or judgment lien) is imposed by law. A mechanic's lien secures unpaid contractors and suppliers and may relate its priority back to when work began, a frequent exam wrinkle.

Remember that an encumbrance does not stop a sale — it transfers with the property unless cleared at closing. This is why a title search and title insurance exist: to discover liens, easements, and encroachments so they can be paid off, accepted, or excepted before the deed is delivered. An owner can sell encumbered property, but a buyer rarely wants title clouded by an undisclosed lien.

Easements terminate in predictable ways the exam may test: by merger (one owner acquires both the dominant and servient parcels), by release (the dominant owner gives up the right), by abandonment with clear intent, or by expiration of purpose. Distinguish an easement from a profit (profit a prendre), which is the right to take resources such as timber or minerals from another's land — a use right plus a removal right.

Keep the families straight: liens are money claims; easements, encroachments, deed restrictions, and licenses affect use or boundaries, not dollars. Sorting a fact pattern into the right family is half the battle on encumbrance questions, so when a question describes a power line crossing the back of a lot, name it (an easement in gross) before reaching for an answer.