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

Public Land-Use Controls

Government limits private property use through four powers, abbreviated PETE:

Police power is the most-tested. It authorizes:

• Zoning — divides land into use districts (residential, commercial, industrial, agricultural). A comprehensive (master) plan guides zoning.
• Building codes — minimum construction standards; compliance is shown by a certificate of occupancy.
• Subdivision regulations — control how raw land is split into lots.

When the government's regulation goes so far it deprives an owner of all economic use, it may be a regulatory taking requiring compensation — but ordinary zoning is a free exercise of police power.

Zoning exceptions you must distinguish

Three exceptions look similar and are routinely confused:

• Nonconforming use — a use that was lawful before the zoning changed and is allowed to continue ("grandfathered"). Example: a corner store zoned residential in 1990 may keep operating, but usually cannot expand or rebuild if destroyed.
• Variance — permission to deviate from a zoning requirement because strict enforcement causes unnecessary hardship unique to the parcel (e.g., a setback variance for an oddly shaped lot). Granted going forward.
• Special (conditional) use permit — allows a use the ordinance permits with approval in that zone (a church or daycare in a residential zone).

Memory split: nonconforming use = already existed; variance/special-use permit = requested now.

Private land-use controls

Private parties also restrict use through deed restrictions and CC&Rs (Covenants, Conditions & Restrictions), commonly imposed by a subdivision developer or an HOA. These can be stricter than public zoning — e.g., zoning allows fences, but CC&Rs ban front-yard fences.

The controlling rule: when a private deed restriction and a public zoning ordinance conflict, the more restrictive one governs. If zoning allows a 35-ft building but the CC&Rs cap height at 25 ft, the owner is limited to 25 ft.

Taxes, special assessments, and putting the controls together

Two government liens deserve their own attention because of their priority. General real-estate taxes (ad valorem) are levied on assessed value and create a lien that, with special assessments, jumps ahead of every other lien regardless of recording date. A special assessment charges only the properties that benefit from a specific improvement — a new sidewalk, sewer line, or street paving — and is usually paid in installments. On the exam, "first in time, first in right" governs everything except these two.

Worked priority example: A property carries a first mortgage recorded in 2019, a judgment lien recorded in 2021, and unpaid 2023 property taxes. At a forced sale the proceeds pay in this order: property taxes first, then the 2019 mortgage, then the 2021 judgment. The newest lien (taxes) is paid before the oldest (mortgage) solely because tax liens have statutory super-priority.

Tie the chapter together with one decision tree. Ask: is the limit imposed by government (police power, eminent domain, taxation, escheat) or by a private party (deed restriction, CC&R, easement)? If government regulation destroys all economic use, it may be a compensable taking. If a private restriction conflicts with public zoning, the more restrictive rule controls. If a claim secures a debt, it is a lien; if it merely limits use, it is a non-money encumbrance — and an easement appurtenant runs with the land while an easement in gross attaches to a person or company.

Encumbrances

An encumbrance is any claim, right, or interest held by someone other than the owner that affects title or limits use. Encumbrances do not prevent transfer, but they pass with the property. They fall into two families:

1. Money encumbrances — liens (a charge against property as security for a debt):

• Voluntary (mortgage) vs. involuntary (tax lien, judgment, mechanic's lien)
• Specific (mortgage, mechanic's, property-tax — attach to one property) vs. general (judgment, IRS, estate-tax — attach to all of a debtor's property)
• Priority: generally "first in time, first in right" by recording date — except property-tax and special-assessment liens, which take priority over all others regardless of date.

2. Non-money encumbrances — limits on use:

• Easements — a right to use another's land
• Encroachments — an unauthorized physical intrusion (a fence/eave over the line)
• Deed restrictions / CC&Rs — private use limits
• Licenses — revocable permission (not a true encumbrance, but tested alongside; a license is personal and can be revoked)
• Profit (profit à prendre) — right to take resources (timber, minerals)

Easements in detail

Easements are the most-tested non-money encumbrance:

Worked example: Owner A's driveway crosses Owner B's lot to reach the road. A's parcel is the dominant tenement; B's is the servient tenement. If A sells, the easement runs with the land and the buyer keeps the driveway right — A does not have to renegotiate.

Encroachment vs. easement trap: an easement is a legal right to use; an encroachment is an unauthorized intrusion (a neighbor's shed 2 ft over the line). An encroachment is discovered by a survey and can cloud title or even ripen into a prescriptive easement if left unchallenged for the statutory period. Termination of an easement can occur by merger (one owner acquires both parcels), release, or abandonment.