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

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

Ownership is never absolute. Government powers and private agreements both limit how land may be used. The exam organizes this into public controls, private controls, and encumbrances.

Public controls — the four government powers (PETE)

Every government retains four powers over private land. Memorize PETE:

Police power is the basis for zoning (residential, commercial, industrial, mixed), building codes, and the master/comprehensive plan. No payment is owed for police-power regulation because it is not a taking — distinguish it sharply from eminent domain, where the government takes title and must pay just compensation.

Zoning conflicts: nonconforming use, variance, special exception

When zoning changes or a property does not fit, three relief mechanisms appear:

• Nonconforming use ("grandfathered") — a use that was legal before the zoning changed may continue, but typically cannot be expanded or rebuilt if destroyed.
• Variance — permission to deviate from a zoning requirement due to unique hardship (e.g., an odd-shaped lot needing a smaller setback). It does not change the underlying zoning.
• Special exception / conditional use permit — an otherwise-allowed use that needs review (e.g., a church or daycare in a residential zone).

Do not confuse a variance (relief from a dimensional rule for hardship) with a nonconforming use (a pre-existing use protected by timing). A downzoning that wipes out value can rise to a regulatory taking requiring compensation, but ordinary zoning does not.

Private controls and the encumbrance taxonomy

Private controls are created by owners, not government: deed restrictions (restrictive covenants written into a deed) and CC&Rs (Covenants, Conditions & Restrictions) enforced by an HOA. They are enforced by court injunction, not fines from the city. Rule: when a public zoning rule and a private deed restriction both apply, the more restrictive one governs.

An encumbrance is any claim, lien, or restriction held by someone other than the owner that affects title or use. They split two ways:

• Liens (financial/money claims): mortgage liens, property-tax liens, mechanic's liens, judgment liens. These affect the owner's ability to transfer clear title.
• Non-money encumbrances (affect use/physical): easements, encroachments, deed restrictions, and licenses (a revocable, personal permission — not a true encumbrance, but tested alongside them).

Easement appurtenant involves two parcels: the dominant tenement benefits, the servient tenement is burdened, and the easement runs with the land to future owners. An easement in gross benefits a person or company (e.g., a utility line) with no dominant parcel. An easement by prescription arises from open, continuous, hostile use for the statutory period — the use version of adverse possession.

Worked trap: A neighbor's fence sits 1.5 feet over the boundary onto the seller's lot. That is an encroachment (an unauthorized physical intrusion), an encumbrance that can cloud title and reduce value — distinct from an easement, which is an authorized right of use. A survey, not a title search, typically reveals encroachments.

Liens: general vs. specific, voluntary vs. involuntary

Liens are sorted on two axes the exam loves to combine. A specific lien attaches to one identified property (mortgage, property-tax, mechanic's lien); a general lien attaches to all of a debtor's property (judgment lien, IRS/income-tax lien). A voluntary lien is created by the owner's agreement (a mortgage); an involuntary lien is imposed by law without consent (tax and mechanic's liens).

Priority generally follows first to record, first in right, with one major exception: property-tax and special-assessment liens take priority over all other liens regardless of recording date. So a mortgage recorded years earlier is still subordinate to this year's unpaid tax lien at a tax sale — a frequently tested twist that decides who gets paid first from sale proceeds.

Easements in Depth: Creation, Termination, and Encroachments

Section 1.4 introduced encumbrances; the exam drills the life cycle of an easement and how it differs from look-alike interests.

How easements are created and ended

Easements arise several ways. An express grant or reservation is written into a deed. An easement by necessity is created when a parcel would otherwise be landlocked - the law implies a right of access across the grantor's remaining land. An easement by prescription arises from use that is open, notorious, continuous, hostile, and for the statutory period (the use-equivalent of adverse possession). An easement by implication arises from prior apparent use when a parcel is divided.

Easements terminate by merger (the dominant and servient parcels come under one owner), release (the benefited owner relinquishes it in writing), abandonment (clear intent plus non-use), or expiration of purpose.

Encroachment vs. easement vs. license

An encroachment - a fence or eave crossing the boundary - is not an easement; it is an unauthorized intrusion usually revealed by a survey rather than a title search, and left unchallenged it can ripen into a prescriptive easement or adverse possession. A license (permission to park, to hunt) looks like an easement but is revocable and does not bind future owners. Distinguishing these three is a recurring exam task: ask whether the use is authorized, whether it is revocable, and whether it transfers with the land.