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

Public Land-Use Controls (Government Powers)

Government limits private property through four powers, recalled with PETE:

• Police power - the right to regulate for public health, safety, and welfare. Zoning, building codes, and subdivision regulations all flow from police power. No compensation is owed to the owner.
• Eminent domain - the right to take private property for public use through condemnation, but the owner must receive just compensation (Fifth Amendment).
• Taxation - the right to levy ad valorem property taxes; unpaid taxes become a superior lien.
• Escheat - property reverts to the state when an owner dies with no heirs and no will.

Zoning classes (residential, commercial, industrial, agricultural) control use, density, and bulk. A variance permits a minor deviation due to hardship; a conditional/special-use permit allows an otherwise-prohibited use (a church in a residential zone); a nonconforming use ("grandfathered") is a prior lawful use that predates a zoning change.

Private Land-Use Controls

Private parties restrict land through deed restrictions and, in subdivisions, CC&Rs (covenants, conditions, and restrictions) enforced by a homeowners association.

Core rule: when a private restriction and a public zoning law conflict, the more restrictive one controls. If zoning allows a 35-foot building but the CC&Rs cap height at 25 feet, the owner is held to 25 feet.

• Restrictive covenants are enforced by neighbors or the HOA, typically by injunction (a court order to stop the violation).
• A restriction that is illegal or discriminatory (a racially restrictive covenant) is void and unenforceable under federal fair-housing law.
• Long-unenforced covenants may be lost through the doctrine of laches (unreasonable delay) or abandonment.

Encumbrances: Liens vs. Non-Money Claims

An encumbrance is any right or interest a third party holds in property that affects its title or use. Encumbrances split into two families:

Lien priority generally follows "first in time, first in right," recorded order - except that real-estate tax and special-assessment liens take priority over all others, regardless of when recorded. A general lien (judgment, federal tax) attaches to all of a debtor's property; a specific lien (mortgage, mechanic's lien) attaches to one identified property.

Easements, Encroachments, and Licenses

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

• Easement appurtenant: benefits an adjoining parcel. It involves a dominant estate (benefits) and a servient estate (burdened) and runs with the land - it transfers automatically when either parcel is sold.
• Easement in gross: benefits a person or company, not a parcel. Utility easements (power lines, sewer) are the classic example; there is a servient estate but no dominant estate.

How easements are created:

1. Express grant or reservation (written into a deed).
2. Necessity (a landlocked parcel needs access).
3. Prescription (open, continuous, hostile use for the statutory period).
4. Implication from prior use.

An encroachment is an unauthorized physical intrusion (a neighbor's shed over the line). An easement by prescription can ripen from a long-tolerated encroachment, which is why surveys matter.

A license is mere personal permission to use land (a ticket to park). Unlike an easement, a license is revocable, does not run with the land, and creates no estate. Exam trap: do not confuse a revocable license with a permanent easement.

Terminating Easements and Liens

Easements end through several recognized events. Memorize these because the exam tests termination as often as creation:

• Merger: the dominant and servient parcels come under one owner; the easement dissolves because you cannot hold an easement over your own land.
• Release: the dominant owner formally releases the right in writing.
• Abandonment: the holder shows clear intent to abandon (non-use alone is usually not enough).
• End of necessity: an easement by necessity ends when the landlocked parcel gains other legal access.

Liens are released differently. A mortgage is cleared by a satisfaction (release) when paid; a mechanic's lien expires if not enforced within the statutory period; a judgment lien is removed by paying the judgment and recording the release.

Other recorded encumbrances

• A lis pendens is a recorded notice that litigation affecting title is pending; it warns buyers that the outcome may bind the property.
• A deed condition can be more dangerous than a covenant: violating a true condition can cause title to revert to the grantor, whereas violating a covenant typically yields only an injunction or damages.

Zoning relief at a glance

Downzoning and takings

A regulation that merely limits use is generally a valid exercise of police power with no compensation owed. But if a regulation goes so far that it deprives the owner of essentially all economic use, it can become a regulatory taking requiring compensation. The exam line: ordinary zoning = no pay; a physical or near-total taking = just compensation.