Section 2 - Chapter 3: Private Limitations on Title Flashcards
What are ENCUMBRANCES?
INDIVIDUAL (NOT GOV’T) ACTION that PLACES LIMITATIONS on the RIGHTS TO THE USE and CONVEYANCE of PROPERTY.
ENCUBRANCE (An easier definition):
Any INTEREST HELD BY ANY PERSON OTHER THAN THE OWNER
How do effect property?
They RESTRICT THE USE OF THE PROPERTY, REDUCE ITS VALUE OR BOTH.
Where can you find out if there is an ENCUMBRANCE on your property?
They should be NOTED ON THE DEED.
What are the 2 TYPES OF ENCUMBRANCES?
Those AFFECTING TITLE and THOSE AFFECTING THE PROPERTY PHYSICALLY.
What are some examples of ENCUMBRANCES AFFECTING TITLE?
LIENS. They are THE MOST COMMON form of PRIVATE ENCUMBRANCE on a Title.
Where do LIENS ALWAYS COME FROM?
FROM A DEBT OWED.
What are some EXAMPLES of LIENS?
- MORTGAGE LIENS
- MECHANICS LIENS
- JUDGMENTS LIENS
Is a LIEN ALWAYS an IMPEDIMENT TO CLEAR TITLE?
YES.
What are some EXAMPLES of ENCUMBRANCES AFFECTING PROPERTY PHYSICALLY?
- DEED RESTRICTIONS
- ENCROACHMENTS
- EASEMENTS
What are DEED RESTRICTIONS or COVENANTS or CONDITIONS?
They are PRIVATE AGREEMENTS IN A DEED, LEASE, OR WILL THAT RESTRICTS THE USE AND OCCUPANCY OF REAL PROPERTY.
What do the MOST COMMON DEED RESTRICTIONS usually involve? (PSDS
- PRICE
- SIZE
- DESIGN
- SETBACK LINES OF IMPROVEMENTS
Who is RESPONSIBLE for the ENFORCEMENT OF DEED RESTRICTIONS?
All the PROPERTY OWNERS AFFECTED BY THE RESTRICTIONS.
What is ONE WAY to CORRECT VIOLATIONS?
Seeking an INJUNCTION (COURT ORDER)
What kind of TITLE does the BUYER of a property with DEED RESTRICTIONS receie?
FEE SIMPLE TITLE.
ENCROACHMENTS
UNAUTHORIZED INFRINGEMENTS on a PROPERTY OWNER’S RIGHTS - DUE TO A PHYSICAL INTRUSION
ENCROACHMENT ON THE LAND (incl fence or driveway) IS CALLED ____?
TRESPASS.
ENCROACHMENT ON SOMEONE’S AIRSPACE IS CALLED _____?
NUISANCE (like overhanging Tree Branches)
How are Encroachments REVEALED?
ONLY an UP-TO-DATE SURVEY. It WILL NOT APPEAR in any other document that was completed BEFORE THE ENCROACHMENT occurred.
Do TITLE INSURANCE POLICIES protect against encroachments?
MOST DO NOT. So most buyers get a recent land survey to prior to closing on a property.
EASEMENT
LEGAL RIGHT TO ENTER SOMEONE’S PROPERTY.
Is an EASEMENT A CONTRACTUAL AGREEMENT?
NO. It’s an INTEREST IN LAND.
Does a GRANT OF EASEMENT have to BE IN WRITING?
YES. Usually IN THE FORM of a SEPARATE DEED or a RESERVATION of a DEED.
