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

Land-Use Controls and Encumbrances

Ownership is never absolute. Two layers of control limit how land may be used: public controls (government) and private controls (other owners/developers).

Public controls — the four powers of government (PETE)

Key distinction: Police power regulates use without paying the owner. Eminent domain actually takes the property and requires just compensation under the Fifth Amendment. When regulation goes so far it destroys value, it may become a compensable inverse condemnation (regulatory taking).

Zoning concepts and private controls

Zoning divides a jurisdiction into districts (residential, commercial, industrial). Exam terms:

• Nonconforming use — a use that was legal before the zoning changed; it may continue ("grandfathered") but usually cannot be expanded or rebuilt if destroyed.
• Variance — permission to deviate from a zoning rule because of hardship (e.g., an odd lot shape).
• Conditional/special-use permit — allows an otherwise-disallowed use that serves the public (a church or school in a residential zone).
• Spot zoning — illegally rezoning one parcel inconsistently with the area.

Private controls are deed restrictions and CC&Rs (covenants, conditions & restrictions) imposed by a developer or HOA, enforced by court injunction. Rule: when public and private restrictions conflict, the more restrictive one governs.

Encumbrances

An encumbrance is any claim, lien, charge, or right held by someone other than the owner that affects title or use. It does not prevent transfer, but it travels with the title. Two families:

1. Liens (money claims): affect value/title. Examples: mortgage, property tax lien (superior), mechanic's lien, judgment lien, HOA assessment lien.

2. Non-money encumbrances: affect use/physical condition. These include deed restrictions, easements, and encroachments.

Easements — the right to use another's land:

• Easement appurtenant involves two adjoining parcels: the dominant tenement (benefits) and the servient tenement (burdened). It runs with the land and transfers with the property.
• Easement in gross benefits a person or entity, not a parcel (a utility company's power-line easement). There is no dominant tenement.
• Easement by prescription is acquired through open, notorious, hostile, continuous use for the statutory period.

Encroachment: an improvement (fence, eaves) that unlawfully extends onto a neighbor's land — usually revealed by a survey, not a title search.

License vs. easement trap: a license is mere personal permission (a ticket to fish), is revocable, and does not run with the land; an easement is an interest in land and is far harder to revoke.

Easements created, terminated, and the priority of liens

Beyond the appurtenant/in-gross split, the exam tests how easements are created and ended. Creation: express grant or reservation in a deed, necessity (a landlocked parcel must have access), prescription (open, hostile, continuous use for the statutory period), and implication from prior use. Termination: merger (one owner acquires both parcels), release, abandonment, or expiration of purpose.

Lien priority and how it is tested

Liens generally rank by recording date — first in time, first in right, with two big exceptions: property-tax and special-assessment liens jump to first priority regardless of date, and mechanic's liens often relate back to the date work began. A general lien (judgment, federal tax, estate) attaches to all of a debtor's property; a specific lien (mortgage, mechanic's, property tax) attaches to one identified parcel.

Worked priority problem: A parcel carries, in recording order, a first mortgage (Jan), a judgment lien (March), and a county property-tax lien (assessed later in the year). At a forced sale the property-tax lien is paid first, then the first mortgage, then the judgment lien. The trap answer pays the mortgage before the taxes because it recorded earlier; tax liens override recording order.

Regulatory takings and the police-power line

The hardest public-control questions ask when regulation becomes a taking. Ordinary zoning, setbacks, and building codes are non-compensable police power. But if a regulation removes essentially all economically viable use, it becomes a compensable regulatory taking (inverse condemnation) under the Fifth Amendment. Distinguish this from eminent domain, where the government affirmatively condemns and takes title for a public use and pays just compensation up front.

Conflict rule to memorize: When a public zoning rule and a private deed restriction or CC&R both apply, the more restrictive provision controls — a one-acre minimum in the CC&Rs governs even where zoning would allow half-acre lots.