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

Public Land-Use Controls: The Government's Powers

Government limits private property through four powers, remembered as PETE:

Police power is exercised through zoning — districts for residential, commercial, industrial, and agricultural use, plus density, setback, and height rules. Unlike eminent domain, police power requires no compensation to the owner because the government is regulating, not taking.

Zoning Relief Tools

• Nonconforming use ("grandfathered") — a use that was lawful before the zoning changed and is allowed to continue. It usually cannot be expanded or rebuilt if destroyed.
• Variance — permission to deviate from a rule (e.g., a smaller setback) due to hardship unique to the lot.
• Special-use (conditional-use) permit — allows a use that benefits the public, like a church or school, within a zone where it is conditionally permitted.
• Spot zoning — improperly rezoning one parcel inconsistently with surrounding land; generally disfavored.

Private Land-Use Controls

Private parties also restrict land through deed restrictions and CC&Rs (covenants, conditions, and restrictions) recorded for a subdivision. These can be stricter than public zoning — for example, requiring a minimum 2,500-square-foot home when zoning allows 1,500.

Rule: when a private restriction and a public zoning law conflict, the more restrictive of the two controls. CC&Rs are typically enforced by a homeowners' association (HOA) through an injunction; violating them does not forfeit title but can force compliance.

Encumbrances

An encumbrance is any claim, right, or interest held by someone other than the owner that limits the use or burdens the title. Encumbrances fall into two families:

A lien does not prevent transfer of title, but the lien usually follows the property until paid. A specific lien attaches to one property (mortgage, mechanic's lien); a general lien attaches to all of a debtor's property (a judgment lien).

Easements, Encroachments, and Licenses

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

• Easement appurtenant — benefits an adjoining parcel. It involves a dominant tenement (benefits) and a servient tenement (is burdened). It runs with the land.
• Easement in gross — benefits a person or company, not a parcel. Utility and pipeline easements are examples. There is no dominant tenement.
• Easement by prescription — acquired by open, continuous, hostile use for the statutory period (like adverse possession but for use, not title).
• Easement by necessity — granted when a landlocked parcel needs access to a public road.

An encroachment is an unauthorized physical intrusion — a neighbor's fence or eaves crossing the boundary line. A survey reveals encroachments. A license is mere personal permission to use land (a ticket to park); it is revocable and does not run with the land.

Worked example: Lot A's driveway crosses Lot B to reach the road, recorded in both deeds. Lot A is the dominant tenement (benefited); Lot B is the servient tenement (burdened). Because it is an easement appurtenant, when Lot A sells, the new owner automatically gets the driveway easement — it runs with the land.

Trap: an easement in gross (utility company line) has no dominant tenement. If a question asks you to identify the dominant tenement for a power-company easement, the correct answer is that there is none — it benefits a company, not a parcel.

Lien Priority and Termination of Easements

When multiple liens hit one property, the exam tests priority — who gets paid first from a foreclosure sale. The general rule is "first to record, first in right," but two exceptions jump ahead of everything regardless of date: real-property tax liens and special-assessment liens. A purchase-money mortgage recorded the same day generally takes priority over other liens against the buyer.

Easements end (terminate) by merger (one owner acquires both dominant and servient parcels), release (the dominant owner gives it up in writing), abandonment (non-use plus intent), or when the purpose ends (a necessity easement dies once other access exists). A simple promise to stop using it, without a written release or true abandonment, does not extinguish an appurtenant easement.

Lis Pendens and the Effect of Notice

A lis pendens is a recorded notice that a lawsuit affecting title is pending. It is not a lien itself, but it warns buyers and lenders that the outcome may affect the property, freezing marketability until the case resolves. Anyone who takes the property afterward takes subject to the judgment.

This ties directly to the recording system's purpose. Recording gives constructive notice to the world, while actually seeing or knowing a fact gives actual notice. A buyer who could have discovered an encumbrance by checking the public record cannot later claim to be an innocent purchaser.

The exam pairs encumbrances with notice because a recorded easement, lien, or lis pendens binds later buyers even if they never read it.