Ch. 9 Liens And Easments Flashcards
Encumbrance
Limits owners freehold interests, another’s right to take possession of the property, or prevent full use of rights
NOT the right of possession
Liens and easements the most common form
Two types of encumbrances
- Those that affect legal ownership, value, or transfer
- liens, deed conditions - Those that affect property’s use
- easements, encroachments, licenses, deed restrictions
Lien definition
A creditors claim against personal or real property as a security for debt
If owner defaults then the creditor and force a sale
To pay back debt
Restricts bundle of rights
Attached to property which can have multiple liens
Terminated with payment and signed documents
Mortgage lien definition
When the lender holds the total until debt is paid, only accepted in a title-theory state
Judgement lien
General // Inferior // Involuntary
Results from a lawsuit against real and/or personal property, issued by court in favor of creditor
Against property for 10 years, can renew for another 10 on real property and 20 on personal property
Writ of execution can be filed by creditor to force sale to collect debt
Lis Pendens
General
AKA action pending or pending litigation
Legal document that gives notice of actions against parcel
Property cannot be sold or encumbered and is unmarketable
Usually the start of foreclosure
Estate and inheritance tax lien
General
Arises from taxes owed by a decedents estate
Determined through probate, attached to real and personal property
Can sell property to satisfy the tax on inherited property
Deceased persons debt
Federal government imposes tax on estate of a person who has passed, imposed when property transfers to the beneficiary
Extension can be granted if they can show the property would sell at a “sacrifice” price - IS Treasury would hold the lien
Statutory lien
Imposed by statutory law
Equitable lien
Imposed by a court action, involuntary
Estate and inheritance tax lien
Arises from taxes owed by a decendent’s estate
Corporation franchise tax
Based on the net profit of the business and if not paid becomes lien on property
Internal Revenue Service lien
For failure to pay any taxes relating to income
Real property tax lien
Has priority over all other liens
As velours tax lien against properties as security for payment of the annual property tax
Mortgage lien
Borrower gives lien to the lenders as security for the loan on the property
Mechanic’s lien
Secures costs of labor of real property improvements
Can be claimed by subcontractor
Priority by date of work beginning or completed
The 2 factors that determine lien priority
- Superior or inferior
1. Date lien was recorded
Subordination
When a lienor agrees to lower position in the junior lien hierarchy
Deed restriction
A limitation on a burgers use of property, stipulated in the deed
Single property or subdivision plat
Deed restriction condition
Can only be created with a transfer of ownership
Deed restriction Covenant
Created by mutual agreement
Easement
A non-possessesory interest in real property that gives the holder rights to use portions of a property
The three Easement characteristics
- One owner, one non-owner
- Pertains to a specific physical barrier within property boundaries
- Either affirmative of negative
Easement appurtenant
Gives property owner right of usage to portions of adjoining property owned by another
Transfers and is non-exclusive
Dominant tenement/estate enjoys usage
Serving estate is the property with the physical element
Appurtenant
“Attaching to”, all rights, privileges, improvements that belong to and transfer with a property
Not necessarily for art of actual
Property (easements/air and water rights, subsurface rights, profit, license)
Easement by necessity or implied grant
Granted by a court of law, must have a common grantor, must have reasonable necessity
Most commonly: need to access a landlocked property
Easement for light and air
Prevents cutting off property owners light and air such as a view
Could attempt to purchase this easement from another property to ensure unblocked view
Party wall easement
Evenly shared common wall
Can also be party fence/driveway/sidewalk
Easement in gross
Personal right that one party grants another tinier the grantors real property
Does NOT attaché to estate
Personal- granted for a grantees lifetime
Commercial- to an entity and not tied to a lifetime
6 ways to create an easement
V, N, P, G, I, C
Voluntary action Necessity Prescription (10 years) Grant Implication Condemnation
Easements are terminated by
Espresso release of the right Merger Purposeful abandonment Condemnation Chance or cessation of purpose Destruction Non-use
Easement by prescription
Use without permission, owner presumed to have knows, over the prescribed number of 10 years
Easement by grant
Express written agreement by owners, stipulated in a grant
Easement by implication
A severance of parcels denoted certain rights
Ex: sell mineral rights, then mining company has right to ingress/egress and use land for specific purpose
Easement by condemnation
Created by a government entity via eminent domain, condemns portion of
Property for the greater good
Ex: highways, utility, roadways, sidewalks
Profit
The right to remove part of soil/produce from land, created by written grant or prescription
License
Personal right granted by
Owner to anther for specific use of property
Cease on death or sale of property revocable at anytime
Can be granted orally
Encroachment
The unauthorized, physical intrusion of one owners real property into another’s
Ex: tree branch in air space may diminish property value
Owner may sue for removal or compensation of damages
If no action than may be an easement by prescription
