Encrumbrances Flashcards
An ___________ is a claim or burden on a property which limits, restricts or otherwise affects one’s right, interest or use of that property. An ___________ is anything which diminishes a person’s rights of ownership. It does not represent ownership of another party’s property. It only grants the right to use a certain property in a certain way, or the right to attach a monetary claim against it.
encumbrance
The state is permitted to encumber real property in four ways. The encumbrances are to protect the rights and interest of the public.
HInt: PP,ED,T,E
Police powers
Eminent Domain
Taxation
Escheats
______ ______: refer to the government’s power to enact and enforce laws to protect the health, safety, morals and welfare of the general public. The state’s authority to enact and enforce is passed on to the municipalities through ________ ____. They can regulate where on a site a building may be built, how it is built, and even if it can be built
Police powers
enabling acts
______ ___________: regulations controlling the use of land to protect property values and promote the health, safety, and welfare of the general public. Local governments create a ______ ____ for the development of the city, and zoning ordinances are used to enforce the plan.
Zoning regulations
master plan
_________ ______: is concerned primarily with the function of land. It is used to
promote the highest and best use of the land.
directive zoning
__________ ______: regulates the size and placement of buildings on their lots, population density, and overall use of space. It also regulates the distance from streets and sidewalks that buildings can be erected, known as ________. Another example would be regulating the number of units in a condominium building relative to the number of parking spaces.
Protective zoning
setbacks
_____________ ___: A building which was built before a zoning ordinance was enacted may not conform to current zoning regulations. This is often allowed to continue until the building is torn down, or the current use of the building is changed.
Nonconforming use
________: Property owners who believe that their interests have been unfairly limited by zoning regulations may present their grievances to the Zoning Review Board. The owner may appeal for a ________, a permit which exempts the owner from a particular zoning ordinance.
Variance
___________ ___ ______: This type of exemption allows the nonconforming use of a property if this use benefits the general public. For example, a power substation may be permitted in a
residential area if it is needed to service the residents there. This is also called a ______ _________.
conditional use permit
zoning exception
__________: A change in zoning from a high density use to a lower density use, for example, from residential to agricultural. There is no compensation to the property owner for any loss in value.
downzoning
______ _____ are created for the purpose of
separating one land use from another. An example would be a park located between a residential area and a commercial area.
Buffer Zones
____ ______: Zoning in which certain portions of a district are set aside for uses other than those for which the district itself is zoned. For example, a busy intersection in a residential district
may be zoned commercial to provide access to stores for the residents.
Spot zoning
________ _____ are enacted to specify the standards for construction of new
buildings and alteration or repairing of old ones.
Building codes
___________ ___________: A developer of a subdivision must submit a subdivision plan, or ____ of ______, showing the proposed location of lots, sewers, roads, utilities, schools, and other public
facilities. The plan must comply with zoning ordinances.
subdivision regulations
plat of survey
_____________ __________ ____: The government’s responsibility to protect and promote the health, safety and welfare of the public extends to the protection of the environment itself. The National Environmental Policy Act of 1970 was enacted to preserve America’s natural resources. Projects authorized or supported by the government in any way must file an environmental impact
statement to become eligible for federal assistance. The act also established the Environmental Protection Agency which has enacted laws to control air quality, water pollution, noise control,
and coastal management.
environmental protection laws
______ and ______ _____: are codes imposed for the protection of the health and safety of the public.
Health and safety codes
____ ________: are government imposed restrictions on the amount of rent an owner can charge. These have been used during war time or to protect against inflation.
Rent controls
______ ___: A municipality’s plan for the future development of the area.
Master Plan
The power of _______ ______ allows the government to temporarily or
permanently claim private property for public use without consent of the owner. This power is typically used to acquire land for roads, schools, hospitals, government buildings, etc. The
government must prove that the property is needed and must pay the owner just compensation, that is, a sum of money equal to fair market value of the property.
Eminent Domain
If an owner refuses the government’s offer of just compensation, the government then must initiate a ___________ ______ in which the government must demonstrate that the property it
wishes to appropriate is needed for public use, and the fair market value must be established.
(* In Louisiana, the term for condemnation is expropriation.)
condemnation action
The power of taxation is exercised in two ways, __ _______ _____ and _______ ___________. This type of encumbrance is an involuntary specific lien. A ____ is a monetary claim upon property which uses the property itself as security for payment of a debt.
taxation
ad valorem taxes
special assessments
lien
A _______ ____ attaches to all of a person’s property, real and personal.
general lien
A ________ ____ attaches only to the property explicitly encumbered by the lien. Property taxes are an example. If not paid, the property may be seized and sold to satisfy the lien.
specific lien
__ _______ _____ are a main source of revenue for local governments. The
term means according to value.
Ad Valorem Taxes
a. First, the market value of the property is established and then multiplied by an assessment ratio to produce the assessed value.
b. Then the assessed value is reduced by the amount of the homestead exemption, if applicable. (* This amount is $7,500 is Louisiana.)
c. Finally, the assessed value is multiplied by the tax rate or millage to determine the amount of tax due. The tax rate is calculated by dividing the budget for the district, minus revenue from other sources, by the total assessed value of all property within the district. The formula for taxes is: Tax = Tax Rate X # of 1000’s of assessed value.
Example: A property is assessed at 50,000. The tax rate is 100 mills. The tax equals 100 X 50, or $5,000. If property taxes are not paid, the property will eventually be sold at a tax sale. Most states use mills to calculate property taxes, but some states use dollars. The formula if using dollars is Tax=Tax Rate ($) X # of 100’s of assessed value.
The Method by which ad valorem taxes are calculated
_______ ___________ are never used by governments to raise revenue. They are imposed only on specific segments of the community, and only at such times as specific improvements for those segments are deemed necessary. These improvements may include street lights, water lines, curbs, streets, recreational facilities, etc.
Special Assessments
Special assessments may be initiated by the property owners themselves or by the appropriate public body. Public hearings are held in which the affected property owners may express their views. Then an ordinance is passed detailing the nature and cost of improvements. The area receiving the improvement is called the __________ ________ or _______ ______ _______.
assessment district
special taxing district
A third government power is the power to seize ownerless land. This power is used when a person dies without a will and with no heirs. His property would then _______ to the state.
Escheats
Every State Cheats
_______ _____: Private individuals may also place liens against real property. The most
common ways in which private property is encumbered are through mortgages, mechanic’s liens, vendor’s and vendee’s liens, and court judgments.
(* In Louisiana, a lien is called a privilege).
Private Liens
_________ To mortgage real property is to pledge or hypothecate it as security for payment of a debt or obligation. Properties encumbered by mortgages have ________ _________ _____ placed against them. If the debt is not satisfied the mortgage may be foreclosed and the property sold to satisfy the debt.
Mortgages
specific voluntary liens
A _______ ____ is also a specific voluntary lien. They are used in connection with the ________ _____ ________ (PMM). This is a mortgage arrangement in which the
seller accepts a downpayment from the buyer and gives the buyer a mortgage on the balance owed on the property. To protect his interest in the property, the seller has the right to place a _______ ____ against the property for the outstanding balance. The seller may foreclose if the
buyer defaults on the payments.
Vendor’s Lien
purchase Money mortgage
_______ ____: If a buyer has given a seller a deposit for the purchase of real property and the sales contract has been signed and the seller defaults, the buyer has the right to place a _______ ____ on the property to recover the deposit. The _______ ____ is also enforced by
foreclosure.
vendee’s lien
The _________ ____ protects workmen, contractors, engineers, architects, suppliers of materials, and others who provide labor or material to build or improve real property. To qualify the mechanic must perform the work with the owner’s consent, and must also give preliminary notice that the property may be attached if the mechanic’s claim is not paid. When the work is completed, the mechanic must file a notice of completion with the county clerk. The lien must be filed within a specified period of time.
(* In Louisiana, a mechanic’s lien, or privilege, must be filed within 60 days after the last work has been completed on the project.) The owner’s property may then be attached, and if the debt is not satisfied, may be sold at an execution sale. ________ ____, recorded or unrecorded, take priority over new or second mortgages on a property, If those mortgages were recorded after work on the property began.
Mechanic’s Lien
_____ _________: Liens may also be placed against real property through court proceedings.
Court judgments
The plaintiff first files a ___ _______, a recorded notice of impending litigation against the property. The plaintiff may also be permitted to file an _________ against the defendant’s property. The __________ allows the court to seize the property to assure that the plaintiff will be
able to acquire his just portion of the assets if his suit is successful.
lis pendens
attachment
The ________ itself is the court’s actual decision. If the court awards a monetary payment, once recorded, the judgment becomes a _______ ____ against the defendant’s personal and real property.
judgment
general lien
Property tax liens are generally paid first. All other liens come next with their priority established by the time or recordation. First mortgages come before junior or second mortgages.
Priority of Liens
A _____________ _________ changes the priority of liens.
subordination agreement
Types of Liens
Specific
General
What type of lien has a voluntary mortgage and involuntary taxes?
Specific
What type of lien has involuntary taxes?
General
A _________ ____ is one which is created intentionally.
voluntary lien
An ___________ ____ is not a matter of
choice.
involuntary lien
A _______ ____ affects all property, both real and personal, while a ________ ____ affects
only that particular property. For example, a mechanic’s lien for an unpaid swimming pool would be an involuntary specific lien. A mortgage on your house would be a voluntary specific lien.
general lien
specific lien
___-____ _______ ____________: Private parties may encumber real property without placing a lien against it. Such encumbrances may be affected by deeds or written contracts. Such encumbrances are referred to as “covenants, conditions, restrictions, rights of way and recorded easements”, (CCR’s).
Non-lien private encumbrances
The 4 most common types of non-lien private encumbrances are:
HInt: DR,E,L,E
Deed Restrictions
Easements
License
Encroachments
____ ___________: are made by the executor of the deed (grantor) and conveyed to the
party receiving the property (grantee) by a clause in the deed.
Deed Restrictions
There are two types of deed
restrictions, ___________ __________ and ___________ _________.
restrictive conditions
restrictive covenants
A ___________ __________ places limitations on the grantee’s property. They are used to set up determinable, or qualified fee estates. They may require that a property be used only for a certain purpose, or that it is not used for a certain purpose.
This type of encumbrance is accompanied by a reverter clause which allows the grantor to take the grantee to court if he fails to uphold the provisions. If the court rules in favor of the grantor, the property will revert back to him. An example of a restriction that would NOT hold up in court would be one specifying that the property be leased only to persons of a
certain religion or race.
Restrictive Conditions
A ___________ _________ is a promise by contract or deed between a private person and a subdivider. These are commonly called subdivision restrictions. They may specify the possible uses of the property, construction methods, size and style of improvements, lot size, etc. In areas where no zoning exists, they are the main method of controlling land uses. If there is a conflict between zoning ordinances and ___________ ________, the most restrictive one takes precedence. Like restrictive conditions are not always enforceable, for example, if they discriminate on the basis of race, religion, national origin, age, sex, marital or employment status, or physical handicap.
Restrictive Covenants
An ________ grants a designated person or persons the right to use a portion of the land of another for a specific purpose. Typically, it grants a right of way, that is, the right to walk or drive across a neighboring property. It grants only an interest in the land and NOT the rights of possession or occupancy. It is not intended for the personal gain or profit of the holder. Utility companies also acquire these to run power lines or water lines. Granting air rights and drainage rights are also common.
(* In Louisiana the term used is servitude. The servitude actually grants much broader rights than the common law term. It is defined as a charge or burden on something for the benefit of something else. The servitude can be for the benefit of a person, or for the benefit of a dominant estate.)
Easement
There are two types of easements, the ________ ___________ and the ________ in _____.
easement appurtenant
easement in gross
________ ___________: In this kind of easement, the rights are vested in the land itself, and not in a person. When ownership of the property is conveyed, the easement transfers with the
property automatically, if it has been properly recorded.
Easement Appurtenant
An easement appurtenant always involves at ____ ___ ______of ___________ ____one needing access, (called _______ and ______) and one granting access.
always involves at least two tracts of neighboring land
ingress
egress
The land benefiting from the easement is called the ________ ________ or ________ ______.
dominant tenement
dominant estate
The land over which the easement runs is called the ________ ________ or ________ ______.
servient tenement
servient estate
Only the _______ ________ can terminate the easement.
dominant tenement
A _____ ____ _______ may be an exterior wall that lies on the boundary line between two lots. Each owner owns half the wall and each has an appurtenant easement in the other half of the wall. A written
agreement is necessary. A party driveway is another example of this type
of easement.
Party Wall Easement
An ________ by _________ is an appurtenant easement that arises when an owner sells a part of his land which has no access to the street except across the original owner’s land. This type of easement is
created by court order based on the principle that an owner can not be landlocked.
Easement by Necessity
An ________ in _____ requires only one tract of land. It is granted to an individual or corporation, neither of which need be a landowner. Most commonly, such easements are granted for installation of utilities on a property, that is, electrical lines, water lines, or for railroad tracks or pipelines. Such commercial easements may ordinarily be assigned, conveyed,
and inherited. On the other hand, they can be held by a private person and usually terminates upon the person’s death.
easement in gross
A _______ is usually an oral agreement granting the short term use of real property. It grants a privilege or permission whereas an easement grants a right. It is revocable at any time by the owner unless otherwise noted. It cannot be transferred nor inherited. Examples of are permission to hunt on private property or attend movie theaters or sporting events.
license
An __________ constitutes the unauthorized use or occupation of another’s property. They occur most often when real property trespasses upon real property. Commonly it include trees, fences, driveways and garages which intrude on neighboring property. If permitted to stand beyond a length of time as set by state law, it may be allowed to continue as an _________ by ____________the basis of adverse possession.
encroachment
easement by prescription
Encroachments constitute ______ ______ (notice given by physical occupation of a property), and are typically discovered by survey.
actual notice
By ______ ________: easement created when neighbors may agree to construct and share a pier centered on the line dividing their lake front properties.
By Mutual agreement
By _________: easement created when Ownership of real property is understood to convey the rights of ingress and egress. In most states, owners of landlocked property may claim an easement appurtenant across adjoining land.
By necessity
Easements by ___________ arise from an unexpressed, but legally binding
understanding between parties involved. For example, if an owner sells the rights to the oil on his property he does so with the implied understanding that he will allow the purchaser to enter the property
to extract the oil.
By implication
Easement by ____________ can be created only through one party’s open, hostile,
exclusive, notorious and uninterrupted use of a portion of the land of another for a period of time specified by state law. This use must be without the owner’s implied or explicit consent. This easement
cannot be acquired against property owned by the government, or against owners judged legally
incompetent.
by prescription
Easement by ___________ is the acquisition of private lands for public use, in
exchange for just compensation.
by condemnation
Easement by ___________ is created when a seller of a property reserves an easement
for his use after the sale.
by reservation
By ______: In the case of the union of the dominant and servient tenements, the easement is terminated because it is impossible for a person to hold an easement on his own property.
(* In Louisiana, this is called confusion).
By merger
By _________ ______________: An easement may be given up. For example, a railroad may relinquish its easement rights when it discontinues service.
By Voluntary Relinquishment
By ____________: If the owner of a servient tenement uses it in such a way as to prevent the possessor of easement rights to the property from exercising those rights, the easement may terminate after a length of time as set by state law. Usually the time it takes to terminate an easement in this way is as long
as it takes to gain an easement by ____________.
By prescription
For ____ of _______: If the holder of an easement no longer has a need for it, the easement can terminate.
For Lack of Purpose
By __________ of ________ ______ upon ____ ______: If the easement rights were agreed upon by both parties to expire on a specific date, this terminates the easement.
By expiration of mutually agreed upon time period
An unpaid swimming pool lien placed by the installer would be an example of:
a. voluntary general lien
b. involuntary general lien
c. voluntary specific lien
d. involuntary specific lien
d. involuntary specific lien
Some examples of involuntary encumbrances include:
a. police powers, eminent domain, taxation, mechanic’s liens
b. mortgages, taxation, police powers, eminent domain
c. escheat, vendor’s lien, eminent domain, taxation
d. property taxes, mortgages, police powers, easements
a. police powers, eminent domain, taxation, mechanic’s liens
The period for redemption of property sold for taxes in Louisiana is a minimum of:
a. 1 year b. 2 years
c. 3 years d. 5 years
c. 3 years
The purpose of special assessments is to:
a. raise revenue for the government
b. pay for improvements to a specific segment of the community
c. pay for special elections
d. provide funding for worthy city projects
b. pay for improvements to a specific segment of the community
A subordination agreement
a. changes the payment schedule for a loan
b. delays foreclosure on a property
c. removes a lien
d. changes the priority of liens
d. changes the priority of liens
CCR stands for:
a. community cooperative regulations
b. co-owner conditions and regulations
c. covenants, conditions, and restrictions
d. Commission conditions and restrictions
c. covenants, conditions, and restrictions
A vendor’s lien is a:
a. specific voluntary lien
b. specific involuntary lien
c. general voluntary lien
d. general involuntary lien
a. specific voluntary lien
An easement appurtenant involves
a. one tract of land
b. two tracts of land
c. at least two tracts of land
d. one or more tracts of land
c. at least two tracts of land
An appurtenant easement that arises when an owner has no access to the street except across his
neighbor’s land is called:
a. easement by necessity
b. easement in gross
c. natural servitude
d. right of use
a. easement by necessity
If property value is lost due to downzoning which is true?
a. the state must compensate the owner b. the city must compensate the owner
c. the owner may sell the property to the state
d. there is no compensation to the owner
d. there is no compensation to the owner
