Encumbrances to Real Property Flashcards
So, what even is an encumbrance?
An encumbrance is a non-possessory interest in a property that burdens the title.
An easement is an…
Interest in, or a right to use, another individual’s land or property, generally for a specific, limited purpose. This is a “physical” encumbrance.
Do easements run with the land?
yes
A lien is
A claim made by a creditor against real or personal property pledged by a debtor as collateral. This is a “financial” encumbrance.
What is a deed restriction?
It is a private (non-governmental) land-use restriction written in the deed. Also known as protective/restrictive covenant. This is a “physical” encumbrance.
A lease is an encumbrance because…
The owner’s use of the property is significantly limited. If a home is being leased, then the owner can’t just go hang out in the home even though they own it. That makes sense, right? This is considered a “physical” encumbrance.
A cloud on the title is
Another form of encumbrance to tile. It just means that there are disputes on the title record that need to be cleared away.
How do you clear a cloud on the title?
Quiet title suit. aka a lawsuit against anyone who has a claim to the land. You might win, you might not.
Some common causes of clouds on a title include:
An owner who dies without a probated will
A divorce
Fraud
Liens
Foreclosure proceedings
A quitclaim deed is…
Essentially, it is a promise written in writing by anyone who might potentially be able to claim a property (like a distant heir and/or ex-spouse). It “quits” their right to claim the property.
What is fraud in a cloudy title context?
Two or more buyers are sold the same property, so the court handles it, and only one gets the property.
Different from encumbrance, a license (not to be confused with a real estate license) is the revocable and temporary permission to use
Someone else’s property for a specific purpose. A license does not run with the land or transfer with the deed or title, which makes a license different from an encumbrance.
A license to use property ends when what happens?
A license is temporary and can be withdrawn at any time. It usually ends if the property is sold or when one of the parties dies. An example of a license is a landowner allowing a specific person to hunt on their property.
License vs. Easement differences
The main difference between a license and an easement is that a license can be withdrawn at any time.
There are a few other key differences to know.
How they are created: Licenses can be established with nothing more than an oral agreement between the property owner and the license holder. An easement generally requires legal action or a written agreement.
Duration: Licenses are temporary, but easements continue to exist indefinitely.
Attachment: Licenses don’t have to run with the property, but easements always do.
Assignment: Unlike an easement, a license terminates if the license holder dies. The license holder can’t assign their license to someone else, either.
An encroachment is
Physical property that crosses the boundary into a neighboring landowner’s property.
There are a few different strategies homeowners can use to solve encroachments:
The person being encroached on can ask their encroaching neighbor to move the item in question.
The encroacher can purchase a tiny piece of the neighbor’s property, so they’re no longer encroaching.
The encroached-on neighbor can sue.
A survey is the
Process and physical product of finding and measuring the boundaries of a piece of real estate, including the location of improvements, encroachments, and easements.
What are some “encumbrance” documents that must be recorded publically (3)
liens, judgement liens, and mechanic liens
What is constructive notice?
if information is available to the public or recorded in official documents, the law assumes you should know about it, and you can’t claim ignorance as an excuse in legal matters.
What is actual notice?
Actual notice is the next level of notice; it means the buyer is actually aware of it. Because it’s impossible to miss. Like two utility poles tell you a construction company has an easement on the property.
Affirmative vs. negative easements?
Affirmative ALLOWS someone to use a property.
An example is a private gate on a public beach for houses on the beach. That gate is an affirmative easement.
Negative PREVENTS someone from doing something on their property that would otherwise be legal.
The most common example of a negative easement is when a property owner is prohibited from building a structure or planting a tree on their property because it would block a neighboring property’s view.
Ways easements are made: (3)
Grants, implications, and operation of law.
Easement by express grant…
Easement by express grant is when a property owner voluntarily gives someone else the legal right to use a specific part of their property for a certain purpose. It’s like giving permission through a formal agreement for someone to use your land in a particular way, such as allowing a neighbor to use your driveway to access their property.
An easement appurtenant is…
The easement appurtenant allows one neighbor to use part of the other neighbor’s property. This type of easement transfers with the land and cannot be discontinued by a new property owner.
The parcel of land that benefits from an easement appurtenant by having the right to cross another owner’s adjacent land is called the
Dominant tenement/estate
The other parcel that must allow such crossing is called the
Servient tenement/estate
An easement in gross is…
Applies to a person or entity, not the specific land.
a floating easement means…
There is no exact, definite location set in place.
