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.
Public Land-Use Controls: PETE
Government limits private ownership through four powers, remembered as P-E-T-E:
| Power | What it does |
|---|---|
| Police power | Regulate use for public health, safety, morals, welfare — zoning, building codes, subdivision rules. No compensation owed. |
| Eminent domain | Government takes private property for public use through condemnation, paying just compensation (fair market value). |
| Taxation | Levy real-estate taxes; unpaid taxes create a superior tax lien. |
| Escheat | Property 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.
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?
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:
- Real-estate tax and special-assessment liens - always first, regardless of when recorded.
- Other liens by recording date - "first in time, first in right."
- 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 by | Trigger |
|---|---|
| Express grant or reservation | Written in a deed |
| Necessity | Parcel is landlocked; ends when necessity ends |
| Prescription | Open, notorious, continuous, hostile use for the statutory period |
| Implication | Prior 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.
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?