5. Easements and Liens

Question 1

Encumbrances

Answer 1

• non possessory interests (e.g. claims, limitations) attached to real estate
• encumber/burden real property owners title
• 4 types: Easements, liens, Encroachments, Deed Restrictions
• non possessory interests= someone has a claim or right concerning a property but does not have right to possess property

Question 2

Easements

Answer 2

= irrevocable right to use another person’s real property for a particular purpose (outlines in easement)
- not right of ownership
- can be public (for power lines) or private (access to landlocked parcel)
- classified as : 1. Easements in Gross. 2. Easement Appurtenant
- Formation: Easement by Conveyance/Express Grant, by implication, by necessity, by prescription, by condemnation, Party wall easement
- Termination: release, merger, abandonment, prescription, failure/expiration of purpose, court action

Question 3

Easements in Gross

Answer 3

= involves a specific parcel of land and benefits a person or company (dominant tenant)
- burdened land= servient tenement
- when servient tenement is sold , easement transfers to new owner
- often held by government and public utilities
- when granted for non commercial purpose = personal easement in gross (ends with death of dominant tenant)

Question 4

Easements Appurtenant

Answer 4

= involves two parcels that are owned by different parties
- burdens one piece of land (servient tenement) for the benefit of the other (dominant tenement)
- can be affirmative =allows someone to do sth or negative= prevents someone from doing sth
- runs with the land (if the title is transferred new owner owns/is burdened by easement)
- Appurtenant = rights that go with real property (air rights etc)

Question 5

Easement by express grant/ Conveyance

Answer 5

= landowner sells piece of land without road access and adds to deed or document that sold plot has access
- result of agreement between two parties
- noted in deed or other document

Question 6

Easement by implication/ implied easement

Answer 6

= formed when land is divided and there is a long standing apparent use reasonable necessary for the enjoyment of the land

Question 7

Easement by necessity

Answer 7

= land would be useless without easement, even without longstanding apparent use
- same as conveyance but court ordered
- strict need for easement
- e.g. landlocked property

Question 8

Easement by prescription

Answer 8

= created by open and notorious, hostile and adverse use of another persons land for a specific time (in NY 10+ years)
- open and notorious = owner should know
- hostile and adverse = against owners interest/ permission
- permanent and legal right to use someone else’s property, adverse possession, does not convey title, not created per deed
- can not be acquired against government property

Question 9

Easement by Condemnation

Answer 9

• occurs via government power when 1. property is hazardous, 2. to enforce housing code, 3. needed for collective goods(airports , streets)
• owner can challange condemnation

Question 10

Party Wall Easement

Answer 10

• when wall is shared
• each owner has appurtenant easement

Question 11

Elements that can transfer land by force of nature

Answer 11

= erosion, accretion, avulsion, reliction

Question 12

Encroachment

Answer 12

= physical object intruding into a neighbors property
- unauthorized (easements created out of agreement)
- not an encumbrance bc its not a right or interest that is held

Question 13

Termination of easement

Answer 13

1. by Release: if all parties agree easement can be terminated via written release
2. by Merger: when two parcels are merged due to single ownership
3. of Abandonment: when holder of easement rights (dominant tenement) is no longer using property, non use alone not reason for termination, statement must express abandonment
4. Prescription: is easement owner doesn’t use it for ten years
5. Failure/expiration of purpose: when purpose for easement doesn’t exist anymore, natural disaster destroys property
6. Court action

Question 14

License

Answer 14

= temporary, revocable, non assignable permission to enter another’s land for a particular purpose
- does not create interest in property, not an encumbrance (≠ easement)
- temporary
- may be created by oral contract
- can be revoked

Question 15

Liens

Answer 15

= non possessory claim against property/assets used as collateral to satisfy a debt
- can be general (attached to all property personal and real) or specific (attached to specific property), voluntary (with consent of owner) or involuntary (by law without consent of owner)
- paid first in time, first in line exception property tax always come first

Question 16

Voluntary Liens

Answer 16

Voluntary /Specific= Mortgages
Voluntary /General=sale of assets used to pay of debt

Question 17

Involuntary Liens

Answer 17

• Involuntary/Specific:
  Property Tax Lien,
  Mechanics Lien (workers not being paid, must be filed 4 months after completion in single family/ 8months for other properties, e.g brokers not paid)
  Attachment Lien
• Involuntary/ General:
  IRS/income Tax Liens,
  Estate Tax Lien,
  Franchise Tax Lien,
  Judgement Lien(= liens against property through court order, can be voluntary)
  Attachment Lien (=prevent transfer of property pending outcome of litigation)

Question 18

Lis pendent

Answer 18

= notification that a lawsuit is pending, warning of pending lawsuit

Question 19

Adverse Possession/ title by prescription

Answer 19

= someone acquires the title to someone else’s property through
1.hostile (no permission)
2. actual (exercised control over property)
3. exclusive (in exclusive possession of trespasser)
4. open and notorious (not hiding)
5.continuous use of it for 10+years
- similar to easement by prescription but instead of interest the title is acquired

Question 20

Chattel

Answer 20

=personal property that is movable