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

Key Takeaways

  • Public land-use controls flow from the police power (zoning, building codes), eminent domain (taking with just compensation), taxation, and escheat — remembered as PETE.
  • An encumbrance is a claim or right that affects title; liens are money claims, while easements and encroachments affect physical use.
  • Private controls include CC&Rs (deed restrictions) enforced by injunction; HOAs administer them and they can be stricter than zoning.
  • An easement appurtenant runs with the land and benefits a dominant tenement; an easement in gross benefits a person or entity (like a utility).
  • Nonconforming use ('grandfathering') lets a pre-existing legal use continue after a zoning change; a variance and a special-use permit are different relief mechanisms.
Last updated: June 2026

Public Land-Use Controls: PETE

Government limits private ownership through four powers, remembered as P-E-T-E:

PowerWhat it does
Police powerRegulate use for public health, safety, morals, welfare — zoning, building codes, subdivision rules. No compensation owed.
Eminent domainGovernment takes private property for public use through condemnation, paying just compensation (fair market value).
TaxationLevy real-estate taxes; unpaid taxes create a superior tax lien.
EscheatProperty reverts to the state when an owner dies with no heirs and no valid will.

Zoning is the most tested police-power tool. Districts are typically classified residential, commercial, industrial, and agricultural. Trap: Eminent domain requires compensation; police-power zoning does not. A downzoning that reduces value is generally not a compensable taking unless it destroys essentially all economic use.

Zoning Relief: Nonconforming Use, Variance, Special-Use Permit

When zoning changes, owners need relief mechanisms — keep these distinct:

  • Nonconforming use (grandfathering) — A use that was lawful before the zoning changed may continue, even though it no longer conforms. It usually cannot be expanded or rebuilt if destroyed.
  • Variance — Permission to deviate from a specific requirement (e.g., a setback or height limit) because strict compliance causes an unnecessary hardship unique to the parcel. The use itself stays legal.
  • Special-use (conditional-use) permit — Allows a use the zoning anticipates in that district under conditions (a church or school in a residential zone).
  • Spot zoning — Illegal singling out of one parcel for treatment inconsistent with surrounding zoning.

Trap: Examiners contrast a variance (relief from a dimensional rule) with a special-use permit (a permitted-with-conditions use). They are not interchangeable.

Test Your Knowledge

A gas station has operated legally for 20 years. The area is rezoned strictly residential, but the station is allowed to keep operating. What is this status called?

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Encumbrances: Liens, Easements, Encroachments

An encumbrance is any claim, lien, charge, or right that affects title but does not necessarily prevent transfer. Two broad families:

Money encumbrances (liens):

  • Specific liens attach to one property — mortgage, property-tax lien, mechanic's lien, special assessment.
  • General liens attach to all of a debtor's property — judgment liens, IRS liens.
  • Priority generally follows recording date ("first in time, first in right"), but property-tax and special-assessment liens are superior to all others regardless of date.

Use encumbrances:

  • Easement — A right to use another's land for a specific purpose.
  • Encroachment — An unauthorized physical intrusion (a fence or roof eave over the boundary). Discovered by a survey; can ripen into a prescriptive easement if it persists.
  • License — Revocable, personal permission to use land (a ticket); not an encumbrance that runs with title.
  • Deed restriction (CC&R) — A private limit recorded against the land.

Easements and Private Deed Restrictions

Two easement types are heavily tested:

  • Easement appurtenant — Involves two adjoining parcels. The dominant tenement benefits; the servient tenement is burdened (e.g., a driveway crossing the neighbor's lot). It runs with the land and transfers automatically with either parcel.
  • Easement in gross — Benefits a person or entity, not a parcel. Commercial easements in gross (utility lines, pipelines) are common and assignable; there is no dominant tenement.

Easements are created by express grant/reservation, necessity (landlocked parcel), prescription (open, notorious, continuous, hostile use for the statutory period), or implication. They terminate by merger, release, abandonment, or end of necessity.

Private controls — CC&Rs: Covenants, Conditions & Restrictions are private deed restrictions recorded by a developer and administered by a homeowners association (HOA). They are enforced by injunction, not police power. When CC&Rs and zoning conflict, the stricter rule controls. Trap: A restriction that violates fair-housing law (e.g., a racial covenant) is void and unenforceable even if recorded.

Lien Priority, Subordination, and the Tested Hierarchy

Because liens are the most exam-heavy encumbrance, master the priority order that decides who gets paid first in a foreclosure:

  1. Real-estate tax and special-assessment liens - always first, regardless of when recorded.
  2. Other liens by recording date - "first in time, first in right."
  3. Exception - mechanic's liens - in many states a mechanic's lien relates back to the date work began or materials were first furnished, which can leapfrog a later-recorded mortgage. Examiners flag this as a frequent surprise.

Subordination agreement: A lienholder can voluntarily agree to take a lower priority - common when a construction lender wants its new loan to sit ahead of an existing one. Without that written agreement, recording date governs.

Easement Creation and Termination - The Distinctions Tested

Created byTrigger
Express grant or reservationWritten in a deed
NecessityParcel is landlocked; ends when necessity ends
PrescriptionOpen, notorious, continuous, hostile use for the statutory period
ImplicationPrior apparent use, reasonably necessary

Easements terminate by merger (one owner acquires both parcels), release, abandonment (with intent), or end of necessity.

Encroachment vs. Easement - A Numeric Cue

If a neighbor's garage extends 3 feet across the boundary line, that is an encroachment discovered by survey, not a recorded easement. Left unchallenged for the prescriptive period, that 3-foot intrusion can ripen into a prescriptive easement or even adverse possession of the strip. The remedy a wronged owner seeks is usually an injunction to remove the intrusion plus damages - the same private-enforcement tool used for CC&R violations, contrasted with the police-power enforcement behind zoning.

Test Your Knowledge

A landowner grants a neighbor the right to cross her lot to reach a public road. The neighbor later sells his parcel. What happens to the crossing right?

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