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

Public Versus Private Controls

Land use is limited by two broad categories. Public controls come from government and apply to everyone: zoning, building codes, the comprehensive plan, environmental rules, and the four government powers (PETE — Police power, Eminent domain, Taxation, Escheat). Private controls come from private agreements and bind only specified parties: deed restrictions and recorded covenants, conditions, and restrictions (CC&Rs). When public and private rules conflict, the stricter one generally governs.

Zoning, Variances, and Nonconforming Use

Zoning divides a jurisdiction into use districts (residential, commercial, industrial, agricultural). Key relief mechanisms:

• Variance — permission to deviate from a zoning rule (e.g., a setback) because strict enforcement causes undue hardship.
• Conditional/special-use permit — allows an otherwise-disallowed use that benefits the public, like a church or school in a residential zone.
• Nonconforming use ("grandfathered") — a use that was legal before the zoning changed and is allowed to continue; it usually cannot be expanded or rebuilt if destroyed.
• Spot zoning — improper rezoning of a single parcel inconsistent with the surrounding area; generally prohibited.

Encumbrances Overview

An encumbrance is any claim, right, or liability attached to property held by someone other than the owner. Encumbrances fall into two families:

All liens are encumbrances, but not all encumbrances are liens. A property can be sold while encumbered; the encumbrance generally follows the land ("runs with the land").

Easements, Encroachments, and Licenses

An easement is a right to use another's land for a specific purpose. An easement appurtenant benefits an adjoining parcel and involves two estates: the dominant tenement (benefits) and the servient tenement (burdened). An easement in gross benefits a person or company (utility lines) with no dominant estate. An easement by prescription can be acquired by open, continuous, hostile use for the statutory period.

An encroachment is an unauthorized physical intrusion (a fence or eave over the line) — discovered by survey, not by title search. A license is mere permission to use land (a ticket to park) and is revocable, unlike an easement.

Liens: Priority and Mechanic's Liens

Lien priority generally follows the date of recording — "first in time, first in right." The critical exception: real-estate property-tax and special-assessment liens take priority over all other liens regardless of recording date. A mechanic's lien secures payment for labor or materials; it often relates back to the date work began or materials were first furnished, which can give it priority over a later-recorded mortgage. A general lien (judgment, IRS, estate tax) attaches to all of a debtor's property; a specific lien (mortgage, tax, mechanic's) attaches only to the named parcel.

Easement vocabulary the exam tests

Easements are the most heavily tested encumbrance because the terminology is precise:

An encroachment (a structure crossing a boundary) and a license (a revocable personal permission, like a ticket) are not easements. Distinguishing the dominant tenement (benefited) from the servient tenement (burdened) is a near-certain exam point: the dominant estate enjoys the use, the servient estate must tolerate it.

Public controls and the police power

Government land-use controls flow from four traditional public powers, often abbreviated PETE:

• Police power: regulation for health, safety, and welfare, including zoning, building codes, and subdivision rules. No compensation is owed when government regulates under police power.
• Eminent domain: the power to take private property for public use through condemnation, which requires just compensation under the Fifth Amendment.
• Taxation: ad valorem property taxes and special assessments, which create superior tax liens.
• Escheat: property reverts to the state when an owner dies with no heirs and no will.

Contrast these public controls with private controls such as deed restrictions and recorded covenants, conditions and restrictions (CC&Rs) enforced by HOAs. When a private CC&R and a public zoning rule conflict, the stricter of the two generally governs. Knowing that police-power regulation needs no compensation while eminent-domain taking does is one of the exam's most reliable distinctions.

Deed restrictions, HOAs, and how restrictions end

Private land-use controls deserve their own attention because the exam often pairs them with public zoning. Deed restrictions are limitations a grantor writes into a deed, while CC&Rs are a broader set of recorded covenants governing a subdivision, typically enforced by a homeowners association (HOA) that can levy assessments and place a lien for unpaid dues. A buyer takes title subject to recorded restrictions whether or not they read them, which is why a title search matters.

When a private restriction conflicts with public zoning, the more restrictive rule controls: zoning that allows duplexes does not override a CC&R limiting the lot to single-family use, and a CC&R cannot authorize a use that zoning forbids. Importantly, a private restriction that violates fair-housing law, such as an old racially restrictive covenant, is void and unenforceable even though it still appears in the record.

Restrictions can end through expiration of a stated term, written release by the benefited parties, merger of the dominant and servient parcels, abandonment, or a court action. Laches (unreasonable delay in enforcing) can bar an HOA from suddenly enforcing a long-ignored rule. Distinguishing private from public controls, applying the stricter-rule principle, and knowing that discriminatory covenants are unenforceable resolves the encumbrance questions on this section.