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

Public Land-Use Controls: PETE

Government limits private ownership through four powers, remembered as PETE:

Police power is exercised without compensating the owner because it regulates, not takes. Eminent domain does require payment: the government uses the process of condemnation to take title and must pay just compensation under the Fifth Amendment. Trap: students confuse the power (eminent domain) with the process (condemnation). Also distinguish escheat (no heirs) from foreclosure (unpaid debt).

Private Controls and the Stricter-Restriction Rule

Owners and developers can impose private limits through deed restrictions and CC&Rs (covenants, conditions, and restrictions), often enforced by a homeowners association. Examples: minimum house size, no commercial use, approved exterior colors. These are enforced by injunction or suit between private parties, not by the city.

When a public rule (zoning) and a private rule (a deed restriction) both apply, the more restrictive one controls. If zoning allows a 35-foot building but a recorded deed restriction caps height at 25 feet, the owner is limited to 25 feet. The reverse is equally true: a deed restriction permitting 40 feet does not override a 35-foot zoning cap.

Zoning Relief

• A variance permits use that deviates from zoning due to hardship (e.g., an odd lot shape).
• A special (conditional) use permit allows a use the zone allows conditionally (a church or school in a residential zone).
• A nonconforming use ('grandfathered') lawfully predates a zoning change; it may continue but generally cannot expand, and if abandoned or destroyed it often cannot be re-established.

Encumbrances: Liens vs. Non-Money Burdens

An encumbrance is any claim, charge, or right that burdens title yet does not necessarily prevent transfer. Two families:

1. Liens (money claims): mortgage liens, property-tax liens, mechanic's liens, judgment liens. These attach because of a debt and can lead to foreclosure.

2. Non-money burdens:

Easements in Depth

An easement appurtenant involves two parcels: the dominant tenement (benefited) and the servient tenement (burdened). It runs with the land — it transfers automatically when either parcel is sold. An easement in gross benefits a person or company, not a parcel (a utility company's power-line easement); there is no dominant tenement.

Trap: a license (permission to hunt on someone's land) is revocable and personal, so it is NOT an easement and does not run with the land. An encroachment, such as a neighbor's fence built 2 feet over the line, is discovered by survey and can ripen into a prescriptive easement or adverse possession if it persists.

Easements: Appurtenant vs. In Gross

An easement is a non-possessory right to use another's land. The exam draws a sharp line between two kinds. An easement appurtenant benefits an adjacent parcel: the dominant tenement holds the right, the servient tenement is burdened, and the easement runs with the land — it transfers automatically to new owners. An easement in gross benefits a person or company, not a parcel — a utility company's power-line easement is the classic example; there is no dominant tenement.

Creation, Termination, and the Encroachment Trap

Easements arise by express grant (deed), necessity (a landlocked parcel must have access), prescription (open, continuous, hostile use for the statutory period), or implication. They end by merger (one owner buys both parcels), release, or abandonment.

Do not confuse an easement with an encroachment — an unauthorized physical intrusion, such as a fence built two feet over the boundary. An encroachment is a title defect a survey reveals; left unchallenged for the statutory period it can ripen into a prescriptive easement or, with possession, adverse possession. The exam answer for a buyer who discovers a neighbor's garage crossing the line: order a survey, then negotiate a boundary-line agreement or removal before closing.

Liens by Priority and the General/Specific Split

Liens are classified two ways the exam tests together. A specific lien attaches to one identified property (mortgage, property-tax, mechanic's lien); a general lien attaches to all of a debtor's property (a judgment lien, an IRS or state income-tax lien). Separately, liens are voluntary (a mortgage the owner signs) or involuntary (a tax or judgment lien imposed by law).

Priority generally follows "first to record, first in right," with one major exception: property-tax and special-assessment liens take priority over all other liens regardless of recording date, because government funding comes first.

The mechanic's-lien trap: many states let the lien's priority relate back to the date work or materials first began, so a contractor unpaid for January work can outrank an April mortgage. The defensible practice is a lien waiver at each payment and a title search immediately before closing.