Encumbrances

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Encumbrances

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is any interest or right to the land held by third persons which affects the title and possibly the value of the property. can be deed restrictions, easements, encroachments, or liens

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Lien

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a charge against property, making that property security for payment of a debt.

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Condition

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a restriction that provides for ownership of the property to revert to the former owner if the condition is violated. It creates a defeasible fee estate

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Covenant

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a promise to do or not to do something.

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Easements

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when persons other than the landowner hold rights to use the land (but not possess it). . . an irrevocable right (as in the owner of the servient estate cannot terminate the easement) to use all or a portion of another’s land for a specific purpose. It is a nonpossessory right, as it gives the holder the right to limited use, but not to possession of another’s real property.

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Servient Estate (or Servient Tenement)

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Land that is subject to, and therefore encumbered by, the easement is called this.

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Easement in Gross

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An easement that is the right of an individual or company, held for the benefit of that person or company. It is personal property of the easement holder. It can be be commercial or non commercial. (e.g. a utility company instals lined under or over privately held property.) this is the most common form of easement It can be sold, assigned or mortgaged. IN this easement, only a servient tenement is involved.

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Easement appurtenant.

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easement that involves at least two parcels of land under spirit ownership. This easement is a burden one property (servient estate) and a benefit to the other property (dominant estate). Because it is a property right, and not a personal right, it is considered a real property interest. It runs with the land. A dominant tenement need not adjoin a servient tenement. Other Expination -has a servient and dominant estate. It is a nonpossessory interest which belongs to the dominant estate, and is transferred with the dominant estate when it is transferred.

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Affirmative easement

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an easement appurtenant granting the right to physically use the servient estate. could be 1) a party wall connecting adjoining townhouses, 2) a right of way providing ingress and egress over an adjoining parcel. 3) an easement to run a sewer line across neighboring property.

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Negative easement

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an easement appurtenant that gives right held by a dominant estate, which restricts the use of the servient estate. would include 1) a few easement prohibiting the owner of the servient estate from constructing or growing anything that would block the view of dominant estate. 2) a solar easement prohibiting solar ray blockage, 3) aviation easement prohibiting the owner of an estate near airport from doing anything to interfere with flight patterns.

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Easement can be created by

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1) Express Grant (holder of servient estate grants easement in writing either in deed or written agreement,

2) Express reservation - grantor of property reserves an easement in the property being conveyed

3) Eminent Domain (condemnation) - govt, utility companies, etc. can take property for fair compensation.

4) Dedication - a subdivider must dedicate streets and other areas in subdivision to the govt and easements to utility companies in order to receive subdivision approval

5) Implication - when an easement is not specified but is obviously necessary (like buying mineral rights and needing to get to the minerals

6) Necessity - ingress and egress to and from the property

7) Prescription - This is unauthorized, nonexclusive, open, notorious and visible, hostile, continuous and uninterrupted use of another’s property for a period set by state statute. It may result in the user obtaining an irrevocable right to continue the use, called a prescriptive easement or easement by prescription.

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Prescriptive Easement or Easement by Prescription

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When a user of land obtains an irrevocable right to continue use through unauthorized, nonexclusive, open, notorious and visible, hostile, continuous and uninterrupted use of another’s property for a period set by state statute.

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Easement can be terminated by

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*An easement may be terminated when the owner of the easement releases his interest by means of a quitclaim deed. It may also be terminated by merger (the dominant and servient estates being owned by the same owner), by voluntary abandonment by the owner of the dominant estate, by the easement being taken by eminent domain, by loss by prescription (adverse possession), by expiration of the time period set for the easement, by cessation of the purpose for which the easement was created, by eminent domain, or (only in the case of an easement by prescription aka would not terminate a deeded easement) by nonuse for a period established by state statute. Note, the easement can be terminated by the dominant tenement, but not by any action of the servient tenement, since it is irrevocable.

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License

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a less formal right to use another property. It is a personal, revocable, nonassignable right to use the property of another. Because it is personal, it could be terminated by the death of either party and by sale of the property. Essentially like a non-commercial easement in gross, except it is revocable and need not be in writing (can be given orally)

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Encroachment

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the unauthorized intrusion of a building or other improvement onto ones land. Like a wall or fence that extends onto another's land. (it is a cloud to the title). most often it is unintentional, but it is illegally entering onto others property without authority or permission of the owner aka a form of trespass.

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Trespass

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the act of entering upon another persons land without authority or permission of the owner.

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Lien

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a security interest of the creditor in the property of another. If the debt is not paid, the creditor can have the property sold to get his money. They include property taxes, special assessments, mortgages, deeds of trust, attachments, judgements, income tax liens, and mechanics “(construction) liens

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General Lien

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Liens that affect all property of the owner. an involuntary lien that applies against a person and all the property of that person. Upon the death of a person, creditors can file claims agains the estate. Debts are paid first from any personal property, then paid from selling of real property. Examples include Judgement liens, debts of decedents, income tax liens, and estate tax liens.

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Specific Lien

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an encumbrance against one or more specified parcels of real estate. Examples are a mechanics lien, property tax lien, special assessment, or a mortgage applying to three parcels.

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Voluntary lien (contractual lien)

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liens created by a voluntary contract, such as a mortgage entered into by the debtor and creditor.

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Involuntary liens

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liens imposed by operation of law, without owners consent. These would include real property tax lien, mechanic lien, special assessment, income tax lien, estate tax lien, money judgement from lawsuit.

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Income tax lien

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a general lien created when a the govt files a tax warrant in the county in which the property of a delinquent income taxpayer is located. The lien has priority as of the date the lien was filed.

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Judgement Lien

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A general, involuntary lien resulting from a judgement in personum (in person). It is a court order resulting from a lawsuit. Because the lien in against the person, it is a lien agains all the persons property (real and personal), rather than any particular items.

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Writ of execution

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getting a court order for the sheriff to seize and sell the land.

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Homestead exemption

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provides protection of real property from foreclosure due to unsecured liens (liens in which the property was not originally offered as security for a debt). The law provides that in the event of foreclosure, the debtor must be able to receive a certain amount of equity from the sale.

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Attachment

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a specific lien placed against property of a defendant in a lawsuit for money damages. They arise at the start, or during the process of legal action. In this process, a writ of attachment is issued ordering the seizure of certain property of the defendant in the action as security for the plaintiff, if the plaintiff happens to obtain the judgement. because of this, it is not dependent upon the judgement being rendered.

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Writ of attachment

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a court order to seize certain property in the case of an attachment lien BEFORE the judgement is rendered.

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Lis Pendans

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A form of public notice filed against certain lands setting forth that court action has been instituted - another definition: A lis pendens is a recorded legal document which gives constructive notice that an action affecting a particular piece of property has been filed in a state or federal court…also that it will effect any future purchaser. It basically puts land on lockdown until a judgment is rendered in a lawsuit.

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Mechanics Lien / Construction Lien

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a specific (or special) lien as the contractor has the right to claim a lien only on the specific property he improved. Note, it is also a statutory lien and an involuntary lien. example - John Smith installs a swimming pool on Mr. Brown’s land. He is not paid. He can file a mechanic’s lien on that parcel of property. These liens are not automatic and must be filed in a specific period of time. the owner of the land must obtain a record of satisfaction to clear he lien form the records.

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Record of satisfaction

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what a land owner must obtain to clear the records if she has had a mechanics lean placed on her property.

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Special assessment

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a govt lien placed against real property to pay all or part of the cost of local improvements that will benefit the property. (sidewalks, drainage, sewer mains, curbs, street lights, etc.) This becomes a lien on the property at the time the amount is determined and fixed.

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Property tax liens.

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A major source of income for local govt. They are specific, involuntary liens and have propriety over all other liens, including liens filed before the lien date. This means that in the event of foreclosure, they are paid first. They become a lien the first day of the tax year, and remain a lien until paid. They are ad valorem taxes.

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Ad Valorem Taxes

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Proportionate taxes. . . Taxes imposed according to the value of what is being taxed.

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Mills

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property tax rates obtained by deciding the budget for tx district by the total assessed value of all taxable property in the district. Same as saying per thousand