Chapter 6: Liens and Easements Flashcards
What is considered an encumberance or cloud on title?
Liens
Monetary claim making property security for payment of debt
Lien
Legally enforceable rights to limited use of another land. Can pertain to any parts of land
Easements
How is a lien created:
A. agreement of parties (mortgage)
B. Operation of Law (tax lien, mechanics lien, etc)
TRUE OR FALSE: If a lien attached to a property is not released prior to sale, the buyer buys and the lien is wiped and released of all existing liens and encumberances?
FALSE
If not released prior to sale, buyer buys subject to ALL existing liens and encumberances
3 items to consider regarding liens:
P.E.S
- Priority
- Enforcement
- Satisfaction
Which type of lien takes priority, regardless of date of recording?
Real Estate Tax Liens
What a lien is recorded, what happens to the title?
Cloud on title
How do you remove a lien on title?
Owner must ensure that the creditor (lienor) records satisfaction of lien ASAP when paid off
When a court orders an encumbered property be sold to satisfy unpaid debts, what is this?
Enforcement of Liens- creditor must request proper jurisdiction to order sale of property in question
Results from court judgements, IRS tax, and estate inheritance tax, and is directed against individual debtor, and therefore attaches to all of his property
General Lien
What type of lien is attached to 1 specific parcel of RE, not people?
Specific Lien
Mortgage liens, utility, mechanics lien, property tax liens, special assessment
Specific Lien
Type of lien entered into an agreement of parties
Voluntary Lien
Type of lien created by operation of law- statutory or equitable
Involuntary Lien
What type of lien is a mortgage?
Voluntary Lien
What type of lien is a property tax lien?
Involuntary Lien
Established or results from laws passed by legislation, created under statue
Statutory Lien
What type of lien is a mechanic or vendor lien?
Statutory Lien
Private, written contract showing intention to pledge property as security for debt.
Equitable Lien
Property Tax
Special Assessment
Mechanics Lien
Lis Pendes
Specific
Statutory
Involuntary
Federal Tax
Court Judgement
General
Statutory
Involuntary
Vendor/Vendee Lien
Specific
Equitable
Involuntary
Benefit from a proposed public improvement, would be voluntary if all affected property owners agreed to pay and petitioned local govt for public improvement
Special Assessment
Imposed for non payment of federal estate tax, federal income tax, and payroll tax, and is attached to all real/personal property of debor
Federal Tax Lien
Pledged as collateral for repayment of a debt
Mortgage Lien
Filed by seller (vendor) against the property sold in the amount of any unpaid purchase price.
Vendor Lien
Filed by Buyer in cases where the buyer has purchased property but not yet received title. Occurs when property is purchased under a contract for deed. If the seller does not or cannot deliver good title after all terms of contract are satisfied, then this would cover all $ paid for property, plus the value of any improvements made to property by buyer
Vendees Lien
Filed against real property by laborers who supplied materials for/worked on improvements, repairs, maintenance of real property to enchance
Mechanics Lien
Lien enforced when court issues a writ of execution directing sheriff to sieze/sell as much of the debtors real/personal property as necessary to pay debt and cover expenses of sale (comes from lawsuits)
Judgement Lien
Lien resulting from a legal process involving seizure of a defendants real or personal property and holding custody as security while lawsuit decided. Collateral for lawsuits
Attachment Lien
Pending lien that gives constructive notice that an action affecting particular property and may becomes involved in a lawsuit. Notice of possible future lien, and if successful dates back to when it was filed
Lis Pendens “Action Pending”
What is an easement created by?
- Agreement
- Adverse/hostile use
- By condemnation proceedings
True or False: Easements are routinely granted to utility, gas, and electric companies
TRUE
What is not considered an interest in land, no writing needed, and can be revoked at anytime, and dies with new landowner?
License
What are the 3 classifications of easements?
- Easement Appurtenant
- Personal Easement in Gross
- Commercial Easement in Gross
Gives the right of one landowner to use the property of adjoining landowner for specific purpose “RUN WITH THE LAND”
Must have 2 adjoinging parcels of land owned by different parties
Easement Appurtenant
TRUE OR FALSE: when either piece of property is sold, given away, or willed to heirs, easement app. does not remain in force and is affected
FALSE- remains the same
Property right given to an individual and is non-assignable. Has a serviant estate, but no dominant estate bc this attaches to a person
Personal Easement in Gross
Property right held by biz entity- telephone, electric, gas company. Attaches to utility company not a piece of property and NO dominant estate. Survives death or sale
Commercial Easement
How are easements created?
G.R.EN.P
- Express Grant Easement
- Express Reservation
- Easement of Necessity
- Prescriptive Easement
Which easement is created by landowner over his own land, should contain all formal elements of the deed, and does not transfer title?
Express Grant Easement
When a landowner sells a portion of his property to another, but reserves an easement over the sold land by placing a reservation in the deed.
Express Reservation
This easement is by operation of law, rather than an agreement. This arises when a piece of property is landlocked, and the owner must be afforded an easement to a road through an adjoining parcel.
Easement of Necessity
Right acquired by an adverse user. Open and hostile
Prescriptive Easement
Involves the right of use only, gained by adverse means.
Easement by Prescription
How is an easement terminated?
- Necessity of easement no longer exists
- Dom and Servient estates merged
- Easement owner (dom) releases serviant
- Dominant estate abandoned
- Serviant estate destroyed
- Court terminates- quiet title
Appurant easement runs with land, regardless of how many times the property is sold.
TRUE
TRUE OR FALSE: Eminent domain is most often used to take title to property, but can also be used to create easement, public access.
TRUE
Owner who has the right to use land is the one who benefits
Dominant Estate
Owner whose land is being used is burdened and holds title
Servient Estate
