Public and Private Land Use Controls and Encumbrances

Question 1

CC&Rs

Answer 1

conditions, covenants, and restrictions

Question 2

Conditions

Answer 2

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.

Question 3

Covenants

Answer 3

agreements or promises between parties

Question 4

Restriction

Answer 4

limits how the land can be used, and is also known as a restrictive covenant or a general plan restriction.

Question 5

Deed restriction

Answer 5

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

Question 6

Subdivision regulations

Answer 6

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.

Question 7

doctrine of laches

Answer 7

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.

Question 8

Private Land Use Controls

Answer 8

Easements, Deed Restrictions, Liens, CC&Rs

Question 9

Encumbance

Answer 9

A limitation on a property title, such as a lien or easement

4 kinds; Liens, Easements, Encroachments, Private Land Controls

Question 10

Lien

Answer 10

A creditor’s legal right to have their debt paid out of the property of a defaulting debtor, usually by a court sale

Question 11

Easment

Answer 11

The authorized use of another’s property for a specific purpose; runs with the land

Question 12

Non-possessory Rights

Answer 12

No right to occupy the property; easements are non-possessory rights

Question 13

Possessory Right

Answer 13

A right to occupy the property

Question 14

Encroachment

Answer 14

The illegal intrusion of some structure or object across a property boundary line

Question 15

Deed Restriction

Answer 15

A private control which limits the use or appearance of a given property

Question 16

covenants, conditions and restrictions

Answer 16

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.

Question 17

Specific Lien

Answer 17

A lien levied against real property (e.g., mortgages, mechanic’s liens, and materialmen’s liens)

Question 18

General Lien

Answer 18

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)

Question 19

Voluntary Lien

Answer 19

A lien that is agreed to, such as a mortgage

Question 20

Involuntary Lien

Answer 20

A lien imposed on a property or person by someone else, such as for nonpayment of taxes

Question 21

Judgment Lien

Answer 21

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

Question 22

Lis Pendens

Answer 22

A public notice that a legal issue is pending

Question 23

Types of Specific Liens

Answer 23

Mortgage, Property Tax, Special Assessment, HOA-Related. Mechanic’s, Vendee’s and Vendor’s, Attachment

Question 24

Types of General Liens

Answer 24

Judgment, Federal and State, Decedent

Question 25

Mechanic’s Lien

Answer 25

A lien placed by a laborer on a property for nonpayment of work done

Question 26

Subordination Agreement

Answer 26

An agreement to subordinate a senior to a junior lien; modifies the order of priority.

Question 27

Easement

Answer 27

The authorized use of another’s property for a specific purpose; runs with the land

Question 28

Easement Appurtenant

Answer 28

This type of easement involves two landowners with adjoining property; one holds the dominant tenement or estate; the other the servient.

Question 29

Easement in Gross

Answer 29

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.

Question 30

Dominant Estate

Answer 30

The recipient or beneficiary of an easement right

Question 31

Servient Estate

Answer 31

The property that is impacted by the easement.

Question 32

Express Easements

Answer 32

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.

Question 33

Easement by Prescription

Answer 33

These easements are created through the continued, uninterrupted, obvious, and adverse—meaning without permission—use of another’s property for many years.

Question 34

Visible Easement

Answer 34

For this type of easement, four criteria must be met:

1. A property is subdivided into at least two separate properties, creating dominant and servient estates from what was once a single property.
2. 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.
3. The easement must have been used long enough before subdivision to show that it was intended to be permanent.
4. The easement must be reasonably beneficial to the dominant estate.

Question 35

Right of Ingress or Egress

Answer 35

The right to enter (ingress) or leave (egress) a property.

Question 36

Right of Way

Answer 36

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.

Question 37

Easement Termination

Answer 37

Express Agreement, Abandonment, Merger, Necessity Discontinues

Question 38

Police Power

Answer 38

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.

Question 39

Eminent domain

Answer 39

government’s power to take private land for public use.

Question 40

Condemnation

Answer 40

When the government actually takes someone’s property

Question 41

involuntary alienation

Answer 41

The transfer of land through eminent domain or condemnation

Question 42

Escheat

Answer 42

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

Question 43

Incentive zoning

Answer 43

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.

Question 44

Bulk zoning

Answer 44

restrict the density of buildings in an area through building design requirements, such as FAR, setbacks, and open space requirements

Question 45

aesthetic zoning

Answer 45

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

Question 46

Downzoning

Answer 46

the process of assigning a lower-density use zone to an area that previously allowed a higher-density use.

Question 47

Spot zoning

Answer 47

when a specific property is rezoned for another use within a zoning area

Question 48

Building codes

Answer 48

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

Question 49

Planning Board

Answer 49

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

Question 50

Zoning Board of Appeals

Answer 50

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

Question 51

Master Plan

Answer 51

A compilation of a municipality’s current and future needs and assets

Question 52

Zoning Ordinances

Answer 52

Local laws or regulations that implement the comprehensive plan by regulating zoning and land use

Question 53

use variance

Answer 53

It allows the owner to use the property for a purpose that would otherwise be prohibited by the zoning in place.

Question 54

area variance

Answer 54

allows owners to develop a property in a way that’s not normally allowed by the physical or dimensional requirements of the current zoning.

Question 55

special use permit - conditional use permit

Answer 55

Granted for a use that’s not in compliance with the zoning ordinance.