1.4 Land-Use Controls, Public & Private Restrictions, and Encumbrances
Key Takeaways
- Public land-use controls flow from police power (zoning, building codes, environmental rules) and the four powers of government: PETE — Police power, Eminent domain, Taxation, Escheat.
- Private restrictions include CC&Rs (deed restrictions) enforced by injunction; when a deed restriction and zoning conflict, the more restrictive one controls.
- An encumbrance is any claim, lien, or right that burdens title; encumbrances split into money (liens) and non-money (easements, encroachments, restrictions).
- Easements run with the land: an easement appurtenant has a dominant and servient tenement; an easement in gross benefits a person or company (utility lines).
- A nonconforming use ('grandfathered') is a pre-existing use allowed to continue after a zoning change; a variance and a special-use permit are different relief mechanisms.
Public Controls: The Four Powers (PETE)
Government may limit private ownership through four sovereign powers, memorized as PETE:
| Power | What it does | Example |
|---|---|---|
| Police power | Regulate use for public health, safety, welfare | Zoning, building codes, rent control |
| Eminent domain | Take private property for public use with just compensation | Condemnation for a highway |
| Taxation | Levy ad valorem taxes; unpaid taxes create a lien | Property tax lien with priority |
| Escheat | Property reverts to the state when an owner dies with no heirs/will | Abandoned estate to the state |
Eminent domain is the power; condemnation is the process of exercising it. A government taking requires just compensation under the Fifth Amendment. A regulatory taking (sometimes called inverse condemnation) occurs when regulation goes so far it effectively deprives an owner of all economic use.
Zoning, Nonconforming Use, Variance, Special-Use Permit
Zoning is an exercise of police power, not eminent domain — no compensation is owed for ordinary zoning. Key relief mechanisms differ:
- Nonconforming use ("grandfathering"): a use that was lawful before a zoning change and is allowed to continue. It usually cannot be expanded or rebuilt if destroyed.
- Variance: permission to deviate from a zoning rule due to unique hardship (e.g., an oddly shaped lot needs a smaller setback). The use stays the same; the dimension changes.
- Special-use (conditional-use) permit: allows a use the zoning otherwise permits conditionally (a church or school in a residential zone).
- Spot zoning (rezoning one parcel for a private benefit inconsistent with the area) is generally illegal.
Conflict rule: when a private deed restriction (CC&R) and public zoning disagree, the more restrictive provision controls. If zoning allows duplexes but the subdivision CC&Rs require single-family homes only, single-family wins.
A homeowner operated a corner grocery for 15 years. The city then rezones the block residential-only. The grocery is allowed to keep operating. Which mechanism applies?
Encumbrances: Money vs. Non-Money
An encumbrance is any claim, lien, charge, or right that burdens or limits title but does not bar transfer. Encumbrances divide into two families:
| Money encumbrances (LIENS) | Non-money encumbrances |
|---|---|
| Mortgage / deed of trust | Easements |
| Property tax lien | Encroachments |
| Mechanic's lien | Deed restrictions (CC&Rs) |
| Judgment lien | License (revocable) |
Liens
A lien is a charge against property to secure a debt. Liens are general (attach to all of a debtor's property — e.g., judgment, federal tax) or specific (attach to one property — e.g., mortgage, mechanic's lien, property tax). Priority generally follows recording date ("first in time, first in right"), but real-estate property tax and special-assessment liens take priority over all other liens regardless of recording date — a frequent exam point.
Easements, Encroachments, and Licenses
An easement is a right to use another's land for a specific purpose. The two main types:
- Easement appurtenant: benefits an adjacent parcel. It involves two tracts — the dominant tenement (benefits) and the servient tenement (burdened). It runs with the land and transfers automatically on sale.
- Easement in gross: benefits a person or company, not a parcel. Utility and pipeline easements are commercial easements in gross. There is a servient tenement but no dominant tenement.
Creation methods include express grant, necessity (a landlocked parcel needs access), and prescription (open, continuous, hostile use for the statutory period). An easement ends by merger (one owner acquires both tracts), release, or abandonment.
Encroachment vs. License
An encroachment is an unauthorized physical intrusion — a fence or roof eave crossing the boundary. It is discovered by a survey and can ripen into a prescriptive easement or adverse possession if left unchallenged. A license is mere permission to use land (a ticket to park); it is personal, non-transferable, and revocable at will — distinguishing it sharply from an easement.
A utility company holds the right to run power lines across a private parcel. There is no neighboring parcel that benefits — only the company. What is this interest?
Deed Restrictions, CC&Rs, and Their Enforcement
When a developer subdivides land, the recorded plat is usually accompanied by Covenants, Conditions, and Restrictions (CC&Rs) — private rules that bind every lot owner and run with the land. CC&Rs control architectural style, setbacks, fencing, paint colors, and use, and are typically enforced by a homeowners' association (HOA) or by neighboring owners. The remedy for violating a private restriction is an injunction (a court order to stop or undo), not a government penalty.
There is a critical distinction between a condition and a covenant. Breaching a covenant lets an injured owner sue for an injunction. Breaching a true condition can, in theory, cause title to revert to the grantor — a far harsher result — which is why courts construe conditions narrowly and disfavor forfeiture.
Public-policy limit: any CC&R that discriminates on a protected class (race, religion, national origin, disability, familial status) is void and unenforceable under federal fair-housing law, even if it remains printed in old deeds. A licensee must never enforce or market such a restriction.
Reading an Encumbrance Question
The national exam frequently bundles several encumbrances into one fact pattern. Use this decision order:
- Is it a money claim? If so, it is a lien — then ask whether it is general or specific and where it falls in priority (remember tax liens jump the line).
- Is it a right to use the land? If so, it is an easement — then ask appurtenant (two parcels) versus in gross (person/company).
- Is it an unauthorized intrusion? That is an encroachment, found by survey.
- Is it mere permission? That is a license — revocable and personal.
- Is it a private use rule? That is a deed restriction / CC&R, enforced by injunction.
For title purposes, almost all of these are encumbrances that the seller must disclose and that a title search should reveal. Most do not prevent a sale, but they reduce the quality of title and can lower value or marketability — which is exactly why an encumbrance can be a material fact a licensee must disclose.