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

The Four Government Powers (PETE)

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

The exercise of eminent domain is called condemnation, and the Fifth Amendment requires just compensation. Inverse condemnation is when an owner sues the government because a regulation has effectively taken the property's value.

Public Land-Use Controls

Under police power, local governments adopt:

• Zoning ordinances - separate uses into residential, commercial, industrial, and agricultural districts.
• Building codes - set construction standards; compliance is shown by a certificate of occupancy.
• Master / comprehensive plans - long-range development blueprints.

When an owner needs relief from zoning:

• A variance allows a use that slightly deviates due to hardship (a setback exception).
• A special use (conditional use) permit allows a beneficial use such as a church or daycare in a residential zone.
• A nonconforming use ("grandfathered") was lawful before the zoning changed and may continue.
• Spot zoning (rezoning one parcel against the master plan) is generally improper.

Private Controls: Deed Restrictions and CC&Rs

Private parties limit use through:

• Deed restrictions - limits written into a deed by a grantor (no fences over 4 feet).
• CC&Rs (Covenants, Conditions & Restrictions) - recorded rules governing a subdivision or homeowners association.

When a private CC&R and a public zoning rule conflict, the stricter (more restrictive) rule controls. If zoning allows a 3-story home but the CC&R caps height at 2 stories, the owner may build only 2 stories.

Exam trap: Courts will NOT enforce a private deed restriction that is illegal or discriminatory (such as a racial covenant), even though the words remain in the old deed.

Encumbrances: Liens vs. Non-Money Claims

An encumbrance is any claim, charge, or right that burdens title. It splits into two families:

Easements in Detail

• Easement appurtenant - benefits an adjoining parcel; the benefited land is the dominant tenement and the burdened land is the servient tenement. It runs with the land and passes to new owners.
• Easement in gross - benefits a person or company (a utility power-line easement), with no dominant tenement.
• An easement by prescription arises from open, continuous, hostile use for the statutory period; an easement by necessity arises when a landlocked parcel needs access.

How Easements Are Created and Terminated

Knowing the ways an easement can arise and end is heavily tested.

Creation methods include:

• Express grant or reservation - written into a deed.
• Necessity - a landlocked parcel must have access (often arises when an owner subdivides and lands a piece without road frontage).
• Prescription - open, notorious, continuous, hostile use for the statutory period.
• Implication - implied from prior use when land is divided.

Termination can occur by merger (one owner acquires both dominant and servient parcels), release, abandonment, or the end of necessity. The classic exam answer: when the dominant and servient tenements come under one owner, the easement is extinguished by merger because you cannot hold an easement over your own land.

Encroachments and a Worked Scenario

An encroachment is an unauthorized physical intrusion - a neighbor's fence or roof eave crossing the boundary. A survey reveals encroachments, which can cloud title and reduce value.

Scenario: A buyer's survey shows the neighbor's driveway crosses 18 inches onto the buyer's lot and has done so openly for 22 years, exceeding the state's 20-year period.

Analysis: The long, open, continuous, and hostile use may ripen into an easement by prescription (or, depending on the claim, adverse possession of that strip). The buyer should resolve it before closing because it is an encumbrance affecting marketable title.

Quick Traps

• A license is mere permission and is revocable; it is NOT an easement.
• A lien is a money claim; an easement is a use claim - do not mix the categories.
• A party wall straddling a boundary creates an easement in each owner for support; neither may remove it unilaterally.
• An easement appurtenant runs with the land and conveys automatically even if the new deed does not mention it; an easement in gross does not transfer to a new landowner because it belongs to a person or company.

Liens by Priority and a Wisconsin Note

When multiple money encumbrances burden one title, the order of payment at a sale follows a priority ladder you should memorize:

A general lien attaches to all of a debtor's property (a judgment, an IRS lien); a specific lien attaches to one identified parcel (a mortgage, a property-tax lien, a mechanic's lien). A voluntary lien is created by the owner's act (a mortgage); an involuntary lien is imposed by law (taxes, a judgment).

Wisconsin note: a contractor or supplier who is unpaid may file a construction lien under Wis. Stat. ch. 779, generally within 6 months of the last work. Because the lien can relate back to the project's start, it can outrank a mortgage recorded in between — a recurring trap when a buyer assumes the recorded first mortgage is automatically first in line.