Public and Private Land Use Controls and Encumbrances Flashcards
CC&Rs
conditions, covenants, and restrictions
Conditions
included with a conveyance and place a requirement on the new owner to perform or not perform some action.
In other words, there’s a potential for the new owner to lose the title. The deed must contain phrases such as “for so long as” or “on condition” or “provided that” to create a condition.
Covenants
agreements or promises between parties
Restriction
limits how the land can be used, and is also known as a restrictive covenant or a general plan restriction.
Deed restriction
Can be a public control, such as zoning, or a private control by an individual owner.
Allows an individual owner to limit the use or appearance of a given property
May run with the land forever, and will appear on all future deeds, or it may have a time limit
Must be placed by the property owner within a year of purchasing the property
Can be placed on an individual property, an entire subdivision, or a neighborhood
Subdivision regulations
If imposed by government entities would be considered public controls, but if imposed by a developer or a private entity then those regulations would be considered private controls
ensure compliance with zoning and public safety requirements, and preserve the value of real property.
doctrine of laches
However, owners need to be consistent in their enforcement, or they could lose the right to do so
HOAs can encourage compliance through fines and citations.
Private Land Use Controls
Easements, Deed Restrictions, Liens, CC&Rs
Encumbance
A limitation on a property title, such as a lien or easement
4 kinds; Liens, Easements, Encroachments, Private Land Controls
Lien
A creditor’s legal right to have their debt paid out of the property of a defaulting debtor, usually by a court sale
Easment
The authorized use of another’s property for a specific purpose; runs with the land
Non-possessory Rights
No right to occupy the property; easements are non-possessory rights
Possessory Right
A right to occupy the property
Encroachment
The illegal intrusion of some structure or object across a property boundary line
Deed Restriction
A private control which limits the use or appearance of a given property
covenants, conditions and restrictions
Usually referred to as CC&Rs, these are the usage limitations imposed on owners/shareholders of a community housing such as a homeowner’s association, cooperative, condominium association.
Specific Lien
A lien levied against real property (e.g., mortgages, mechanic’s liens, and materialmen’s liens)
General Lien
A lien against a person and all the property owned by that person, whether real or personal (e.g., judgments, estate and inheritance tax liens, income tax liens)
Voluntary Lien
A lien that is agreed to, such as a mortgage
Involuntary Lien
A lien imposed on a property or person by someone else, such as for nonpayment of taxes
Judgment Lien
Placed when monetary damages are awarded; can be placed on property until the debt is paid
A general, involuntary lien against a property due to a court decree resulting from a lawsuit
Lis Pendens
A public notice that a legal issue is pending
Types of Specific Liens
Mortgage, Property Tax, Special Assessment, HOA-Related. Mechanic’s, Vendee’s and Vendor’s, Attachment
Types of General Liens
Judgment, Federal and State, Decedent
Mechanic’s Lien
A lien placed by a laborer on a property for nonpayment of work done
Subordination Agreement
An agreement to subordinate a senior to a junior lien; modifies the order of priority.
Easement
The authorized use of another’s property for a specific purpose; runs with the land
Easement Appurtenant
This type of easement involves two landowners with adjoining property; one holds the dominant tenement or estate; the other the servient.
Easement in Gross
The easement owner does not own land adjacent to the property on which the easement applies. This is typically a governmental easement or a public utility easement.
Dominant Estate
The recipient or beneficiary of an easement right
Servient Estate
The property that is impacted by the easement.
Express Easements
Written documents that typically outline the easement’s terms, location, and purpose. Some go so far as to draw out specific dimensions. When legal disputes occur, courts tend to favor express easements.
Easement by Prescription
These easements are created through the continued, uninterrupted, obvious, and adverse—meaning without permission—use of another’s property for many years.
Visible Easement
For this type of easement, four criteria must be met:
- 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.
Right of Ingress or Egress
The right to enter (ingress) or leave (egress) a property.
Right of Way
A type of easement; 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.
Easement Termination
Express Agreement, Abandonment, Merger, Necessity Discontinues
Police Power
the government’s authority-at the federal, state, and local level-to do what it can to ensure the health, safety, and welfare of its citizens.
Eminent domain
government’s power to take private land for public use.
Condemnation
When the government actually takes someone’s property
involuntary alienation
The transfer of land through eminent domain or condemnation
Escheat
When a property owner dies without having a will in place, the property is distributed to heirs in accordance with inheritance law. But if no heirs or creditors can be found, the state can take the property
Incentive zoning
where a municipality will allow an otherwise prohibited type of construction if the developer will give the municipality something back. Often this relates to the floor-to-area ratio, which we call FAR for short.
Bulk zoning
restrict the density of buildings in an area through building design requirements, such as FAR, setbacks, and open space requirements
aesthetic zoning
will specify, for instance, that all buildings in a neighborhood have to be of a certain style; can sometimes pertain to commercial buildings in a town
Downzoning
the process of assigning a lower-density use zone to an area that previously allowed a higher-density use.
Spot zoning
when a specific property is rezoned for another use within a zoning area
Building codes
address the method of construction, the materials used, and the safety and sanitary standards of a building to help ensure a safe, properly functioning environment for a building’s occupants
Planning Board
A planning board prepares and amends the master plan for the community and implements that plan through the site plan and subdivision ordinances and recommendations to other agencies. It also investigates, maps, reports and makes recommendations relating to planning and development of the municipality, and recommends amendments to the zoning ordinance or map
Zoning Board of Appeals
A zoning board of appeals makes zoning ordinances more flexible by keeping zoning legislation out of the courts; one of a board’s main duties is to maintain the essential character of neighborhoods by interpreting zoning ordinances; board members are appointed by the mayor or city manager, village board of trustees, or town board
Master Plan
A compilation of a municipality’s current and future needs and assets
Zoning Ordinances
Local laws or regulations that implement the comprehensive plan by regulating zoning and land use
use variance
It allows the owner to use the property for a purpose that would otherwise be prohibited by the zoning in place.
area variance
allows owners to develop a property in a way that’s not normally allowed by the physical or dimensional requirements of the current zoning.
special use permit - conditional use permit
Granted for a use that’s not in compliance with the zoning ordinance.
