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

Public Controls: The Four Government Powers (PETE)

Government can limit private ownership through four powers, remembered as PETE:

Trap: only eminent domain requires payment. Inverse condemnation is when an owner forces the government to pay because a regulation has effectively taken the property's value.

Zoning, Variances, and Nonconforming Use

Zoning flows from police power and divides land into use districts (residential, commercial, industrial). Related concepts:

• Variance - permission to deviate from a zoning rule due to hardship (e.g., a smaller setback on an oddly shaped lot).
• Conditional (special) use permit - allows a use otherwise not permitted, such as a church in a residential zone.
• Nonconforming use - a lawful pre-existing use that no longer matches new zoning; it is grandfathered in but usually cannot be expanded or rebuilt if destroyed.
• Spot zoning - illegally rezoning a single parcel against the area's plan.

Encumbrances Overview

An encumbrance is any claim, lien, charge, or right that a person who is not the owner holds in the property. An encumbrance does not necessarily stop a sale, but it must usually be disclosed and resolved. Encumbrances split into two families:

• Money claims (liens) - the property is security for a debt.
• Use-affecting interests - easements, encroachments, and deed restrictions that limit how the land is used.

Trap: a property can be sold subject to an encumbrance. A buyer can knowingly take title with an existing utility easement or even an outstanding mortgage in place; the encumbrance is a defect to weigh, not an automatic bar to transfer.

Liens: General vs. Specific, Voluntary vs. Involuntary

A lien is a charge against property to secure a debt. Two classifications:

Priority generally follows the order recorded ("first in time, first in right"), but real property tax liens take priority over all other liens regardless of recording date.

How Easements End and Other Encumbrances

An easement is not always permanent. It can terminate by merger (the dominant and servient parcels come under one owner), by release (the benefited owner gives it up in writing), or by abandonment (clear non-use plus intent to abandon). A license, by contrast, is mere permission to enter (a ticket to a concert) and is revocable at will - do not confuse it with an easement, which is an interest in land.

Other use-affecting encumbrances include a party wall shared by two buildings on a boundary and a lis pendens, a recorded notice that litigation affecting title is pending.

Easements and Encroachments

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

• Easement appurtenant - benefits an adjacent parcel; involves a dominant tenement (benefited) and a servient tenement (burdened). It "runs with the land" and transfers with the property.
• Easement in gross - benefits a person or company, not a parcel (a utility company's power-line easement).
• Easement by necessity - created when a parcel is landlocked and needs access.
• Easement by prescription - acquired through open, continuous, hostile use over a statutory period.

An encroachment is an unauthorized physical intrusion onto a neighbor's land (a fence built three feet over the line). It is usually revealed by a survey, not a title search.

Subdivision and Development Controls

Beyond zoning, governments regulate how raw land becomes building lots:

• Subdivision regulations govern how a developer splits land, requiring street layouts, lot sizes, drainage, and dedicated land for utilities or parks.
• Building codes set construction standards; a certificate of occupancy confirms a finished building meets code and may be lawfully occupied.
• Comprehensive (master) plan - the long-range policy document a community adopts; zoning ordinances must conform to it, which is why spot zoning that ignores the plan is illegal.

Trap: a developer's recorded plat that dedicates streets to the public transfers those streets to the municipality - the developer no longer owns them once the dedication is accepted.

Private Controls: Deed Restrictions and CC&Rs

Private land-use controls are created by owners and developers, not government. Deed restrictions are limits written into a deed (e.g., "no commercial use"). CC&Rs (Covenants, Conditions, and Restrictions) are recorded subdivision-wide rules enforced by the homeowners association (HOA) or by neighboring owners through court injunction.

The controlling rule: when a private restriction and a public zoning rule conflict, the more restrictive rule governs. If zoning allows a six-foot fence but CC&Rs cap fences at four feet, the owner must obey the four-foot limit. Private restrictions cannot, however, violate fair housing law - racially restrictive covenants are void and unenforceable.