Encumbrances on Real Property (S2U5) Flashcards
Encumbrance
any claim or lien held by another person or entity against the property that limits the owner’s use or rights, or decreases the property value.
Lien
a creditor’s legal right to have their debt paid out of the property of a defaulting debtor, usually by a court sale.
Easement
the authorized use of another’s property for a specific purpose.
Non-Possessory Rights
allow usage of a property without actual occupation of the property.
Encroachments
an affixed intrusion onto another person’s property that is not authorized.
Deed Restrictions
limit the use or appearance of a property
CC&R
aka Covenants, Conditions, and Restrictions: The rules of an association, such as a HOA or Cooperative.
Specific Lien
attaches to a single property
General Lien
affects all of a debtor’s property, both real & personal
Voluntary Lien
when ppl agree to have the security placed on themselves or their property
Involuntary Lien
when creditors put a lien on both real and personal property without the owner’s consent - this requires legal action
Mortgage Lien
specific, voluntary lien when financing a house
Property Tax Lien
property taxes - failure to pay creates lien
Special Assessment Lien
When gov’t makes an improvement to the property (sidewalks, streetlights, etc) that benefits the public, the gov’t can place a levy against the real property to help fund the improvement.
HOA Lien
When properties with HOA’s don’t pay their HOA fees. Some states (20) give HOA liens Super Lien Status.
Super Lien
lien’s that take priority over other liens.
Mechanic’s Lien
If professional or skilled workers aren’t paid for their work, a lien is put against the house.
Vendee’s & Vendor’s Lien
When a seller defaults in performing a contract, the buyer has a vendee’s lien against the property for sale to receive an earnest money reimbursement. A vendor’s lien allows a seller to repossess a sold property until the buyer pays in full, agreed-upon purchase price.
Attachment
In lawsuits for monetary damages, the courts can place encumbrances on property owned by the defendants. The court holds the property in custody as security to satisfy any judgement the court renders in the plaintiff’s favor.
A Writ of Attachment is recorded in the public records and creates a lien against the property
Judgement Lien
When people win lawsuits over property owners, judgment liens ensure they get the money won in the lawsuit.
Federal & State Taxes Lien
If ppl don’t pay their taxes, a lien is placed on the house.
Decedent’s Debts
When a person dies and has debt
First personal property not in the will is sold to pay the debt.
Then PP in the will is sold to pay the debt
Lastly, real property is sold to pay the debt
Lis Pendens
Not actually a lien, instead it serves as constructive notice that someone other than an owner is claiming a potential ownership interest in real property.
This is often used in foreclosure.
Easement
a non-possessory right acquired by one party to use the land of another party for a special purpose.
Easement Appurtenant
Easements attached to a specific parcel of land that transfer within the land; grants the right to use adjoining property.
Easement in Gross
Easements granted to a specific individual or business entity rather than attached to the property itself
Dominant Estate
The recipient or beneficiary of an easement right
Servient Estate
the giver of the easement right.
Express Easements
written documents that typically outline the easement’s terms, location, and purpose.
Easement by Perscription
created through the continued, uninterrupted, obvious, and adverse—meaning without permission—use of another’s property for many years. They also must be exclusive to the party using the property. If permission is granted, or the trespasser in any other way acknowledges the trespass, easement by prescription is not formed.
Visible Easement
A property is subdivided into at least two separate properties, creating dominant and servient estates from what was once a single property.
The easement must be situated in a way that it creates an obvious benefit to the dominant estate, and a burden to the servient estate.
The easement must have been used long enough before subdivision to show that it was intended to be permanent.
The easement must be reasonably beneficial to the dominant estate.
Easement by Necessity
Created only for the purpose of entering and exiting property (ingress & egress)
Ingress
Enter a property
Egress
Exit a property
Right of Way
differ from other easement types because they don’t allow usage of the land but instead provide a pass-through. Rights-of-way are typically granted to allow access from point A to point B, the distance of which could be as short as a shared driveway to as long as a power company’s utility lines
Express Agreement
Both parties agree, in writing, to terminate the easement.
Abandonment
The dominant estate owner takes action that shows a clear intent to stop using the easement, such as building a road so there’s no longer a need for an easement across a neighbor’s property.
Merger
If one of the parties buys or otherwise attains the other’s property, the dominant and servient estates are merged and there’s no longer a need for an easement.
Necessity Discontinues
If the easement is no longer needed, the easement is terminated. This is similar to abandonment, except that abandonment specifically requires action by the dominant estate’s owner.
True or False: Tenants usually have the right to remain in a property even if it’s sold during their lease term, unless the lease states otherwise.
True
True or False:If the lease agreement includes the right to review the lease, the new owner must honor that right and allow tenants to renew at the end of the term
True
True or False: Any pre-paid rent would not be transferred to the new owner, and the tenant would owe the new owner any additional monies not specified in the lease agreement.
False: Any pre-paid rent would be transferred to the new owner, usually at closing and the tenant would not owe the new owner any additional monies not specified in the lease agreement.
