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

Public Land-Use Controls: PETE

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

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.

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

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.