Encumbrances

Question 1

An encumbrance

Answer 1

is any interest or right to land held by third persons which affects the title and possibly the value of the property.
It could include a claim against clear title resulting in a cloud on the title.

Question 2

two types of encumbrances

Answer 2

1. Some encumbrances affect the physical condition of the property or affect the use of the property. These include deed restrictions (private limitations on the use of land), easements, and encroachments.
2. Other encumbrances are financial; they involve money. Such encumbrances are called liens. A lien is a charge against property, making that property security for payment of a debt.

Question 3

An easement

Answer 3

is an irrevocable right to use all or a portion of another’s land for a specific purpose. It is a non-possessory right, as it gives the holder the right to limited use, but not to possession of another’s real property.

Question 4

a servient estate or servient tenement

Answer 4

Land that is subject to, and therefore encumbered by, the easement is called a servient estate or servient tenement.

Question 5

an easement in gross

Answer 5

An easement that is the right of an individual or company, held for the benefit of that person or company, is called an easement in gross.
An easement in gross is personal property of the easement holder. It attaches to them personally and not to their land.
The easement could be noncommercial or commercial..

Question 6

easement appurtenant

Answer 6

With an easement appurtenant there are at least two parcels of land under separate ownership.
This easement is a burden on one property (the servient estate) and a benefit or appurtenance to another property (the dominant estate or dominant tenement).

Question 7

An affirmative easement

Answer 7

is a right to physically use the servient tenement

Question 8

A negative easement

Answer 8

is a right held by the dominant estate, which restricts the use of the servient estate

Question 9

Express grant

Answer 9

The holder of the servient estate grants the easement in writing, either in a deed or a written agreement between the parties. This could be considered an easement created by mutual agreement.

Question 10

Express reservation

Answer 10

The grantor of the property reserves an easement in the property being conveyed.

Question 11

Eminent domain (condemnation)

Answer 11

The government, private utilities and public transportation companies may take easements in private property if the property owner will not give them voluntarily, as long as fair compensation is provided.

Question 12

Dedication

Answer 12

A subdivider must dedicate streets and other areas in a subdivision to the government and easements to utility companies in order to receive subdivision approval.

Question 13

Implication

Answer 13

This results when an easement is not specified but is obviously necessary for a person to exercise rights received by grant or reservation, e.g., in most states a person can be sold mineral rights, and if no easement is specified to allow him to get to the minerals, an easement is implied.

Question 14

Necessity

Answer 14

An easement by necessity is a type of implied easement, created when justice or necessity make it necessary that an easement be provided for access (ingress and egress) to and from the property.

Question 15

Prescription

Answer 15

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.

Question 16

Terminating an Easement

Answer 16

An easement may be terminated in the following ways:

• Written release signed by the easement holder (i.e., the holder of the dominant estate or the holder of an easement in gross). It may be in the form of a quitclaim deed or an agreement between the easement holder and the owner of the servient estate.
• Clear and intentional abandonment by the easement holder, e.g., by building over the land leading to a right of way easement, so that access to that right of way was no longer possible.
• Merger of the servient tenement and dominant tenement under one owner, since that owner will no longer need a right to use someone else’s land.
• Expiration of a specified time period for which the easement was created.
• The purpose for which the easement was created ceases to exist, e.g., when access to a new street makes an easement by necessity unnecessary or when telephone lines are relocated off the property.
• Prescription (adverse use) by the servient estate holder for a specific number of years.
• Eminent domain, with the government taking the right away upon payment of fair compensation.
• Destruction of the servient tenement. For example, an easement given for a party wall or utility lines through a building would terminate if the building were destroyed.
• Nonuse of a prescriptive easement for a specified number of years.

Question 17

A license

Answer 17

is a personal, revocable, nonassignable right to use the property of another.
Because it is personal, it could be terminated by death of either party and by sale of the property.
It gives a person permission to use land for some limited purpose, but gives no other rights in that land.
It is like a noncommercial easement in gross, except that it is revocable and need not be in writing.

Question 18

An encroachment

Answer 18

is the unauthorized intrusion of a building or other improvement onto one’s land.

Question 19

lien

Answer 19

is a security interest of the creditor in the property of another

Question 20

A general lien

Answer 20

is an involuntary lien that applies against a person and all of the property of that person, except property exempted by statute. Judgment liens, debts of decedents, income tax liens and estate tax liens are general liens.

Question 21

A specific (or special) lien

Answer 21

is an encumbrance against one or more specified parcels of real estate.
A mechanic’s lien, a property tax lien, a special assessment, or a mortgage applying to three parcels would be a specific lien.

Question 22

A voluntary lien

Answer 22

is a contractual lien. It is created by a voluntary contract, such as a mortgage or a deed of trust, entered into by the debtor and creditor.
A mortgage would create an encumbrance in the form of a voluntary lien against the property by pledging the property to secure the debt.

Question 23

Involuntary liens

Answer 23

are imposed by operation of law, without the owner’s consent.
These would include a real property tax lien, a mechanic’s lien for work done on property, a special assessment for public improvements benefiting property, an income tax lien, an estate tax lien, or a money judgment of a court resulting from a lawsuit.
Involuntary liens may be statutory or equitable.

Question 24

Statutory liens

Answer 24

are those authorized by state statute, such as mechanic’s liens and property tax liens.

Question 25

Equitable liens

Answer 25

are those imposed by courts of equity, often as a result of breach of contract.

Question 26

The income tax lien

Answer 26

is a general lien created when a government files a tax warrant in the county in which property of a delinquent income taxpayer is located.
Once recorded, this lien applies to all of the taxpayer’s property in any counties in which the lien is filed. The lien has priority as of the date the lien was recorded.

Question 27

A judgment lien

Answer 27

is a general involuntary lien resulting from a judgment in personam (against a person).
The judgment is a court order resulting from a lawsuit, to enforce a contractual or legal right to receive a payment of money due, determining that a person is indebted to another and fixing the amount of the indebtedness.
Because the lien is against the person, it is a lien against all of that person’s property (real and personal), rather than any particular items.

Question 28

writ of execution

Answer 28

During the lien period, the judgment debtor cannot convey clear title to his real property, unless the lien is satisfied, as the judgment would remain on the property even if the property were sold. If the debtor can satisfy the judgment before it is enforced, they would obtain from the creditor a satisfaction of judgment and record it to show that the judgment has been paid and is no longer a lien on the debtor’s real property. Any time during the lien period and before the judgment is satisfied, the judgment creditor may seek to have the judgment enforced by a process referred to as execution. The creditor would ask the court for a writ of execution, ordering the sheriff to sell the debtor’s property to satisfy the judgment.

Question 29

homestead exemption

Answer 29

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

Question 30

An attachment

Answer 30

is a specific lien placed against property of a defendant in a lawsuit for money damages.

Question 31

lis pendens

Answer 31

Because a considerable period of time may pass between the filing of a lawsuit and the actual rendering of a judgment, in an action affecting title to real property, the plaintiff may record a notice of the pending suit, called a lis pendens.

Question 32

a mechanic’s lien (or materialman’s lien or construction lien)

Answer 32

This lien results from statutory law, as opposed to common law, so it is considered a statutory lien.
The law gives those who have furnished work or materials for the improvement of real property the right to place a lien on that property if they are not paid.
This allows contractors, subcontractors, laborers, material suppliers and equipment renters to file such liens.