Encumbrances

Question 1

What is encumbrance?

Answer 1

Usually relates to real property and

Is a right or interest in real property by another which results in loss of value or use of that property.

Question 2

Encumbrances affect what?

Answer 2

1). The physical use of the property such as
1) an easement
2) encroachment
3) restrictive covenant
Or

2) the Title itself such as

       1) .   A judgement lien
        2) . A mortgage lien
        3) an association lien
        4) .  A mechanic’s lien
         5) . Tax lien

Question 3

Easements are created by what?

Answer 3

Express grant. Written

Express reservation.when landowner coveys title but reserves right to continue use for special purposes. Examples easement appurtenances & easement in gross

Implication. Not written. It is the exception to the Statue of Fraud
A). Easement by continuous use
B). Profit a Prendre. Grants right to profit. A valuable product from the land I.e.oil or
Gas
C). Easement by Necessity I.e. landlocked and needs a road
D). Easement by Prescription similar to adverse possession

Question 4

What is the difference between adverse possession and easement by prescription?

Answer 4

The difference is that
Adverse possession , an adverse party is claiming ownership

Easement by prescription , an adverse party is claiming an easement (right of way). Does not necessarily have to be exclusive like adverse possession I.e. public beach access.

Question 5

What is a negative easement?

Answer 5

In Hawaii, the most common negative easement if for view.

Question 6

Easement vs a license

Answer 6

LICENSE IS NOT AN INTEREST IN LAND

licenses are
Temporary
Personal ( not assignable and non transferable)
Revocable

Question 7

De Minimis Law (Structure Position Discrepancies)

Answer 7

Allows tolerances regarding minimum encroaching onto the property of another.

If the encroaching property is within the tolerances, it is NOT an encroachment.

Question 8

What are the allowable Tolerances?

Answer 8

CRAC

1) . C: commercial property, industrial and multi-unit residential property .25’. (3”)
2) . R: residential property. .5’. (6”)
3) A: agricultural and rural property .75’ (9”)
4) C: conservation property 1.5’. (18”)