Adjacent Owner Issues & Use Restrictions - Part 1 - Chapters 37-40

Question 1

Understand the limitations and restrictions on use mutually agree to by all property owners in a subdivision document in the Covenants, Conditions and Restrictions (CC&Rs)

Answer 1

Developers subdivide land into two or more horizontal or vertical sections called lots, parcels or units. Having created a subdivision, developers place restrictive covenants on how the lots may be used by later owners called successors. Use restrictions are usually contained in the CCnRs and are typically recorded with the original subdivision map. Recorded documents in the chain of title to a parcel of RE place a buyer on constructive notice of their contents.

A prospective buyer of a home in a subdivision protects themselves from unknowingly buying property burdened with unwanted restrictions by reviewing a preliminary title report (PRELIM) prior to acquiring a property. A Prelim discloses the results of the title company’s search of the property title history. As a customer service, title companies supply copies of any CCnRs of record to buyers or their agents on request.

Question 2

Distinguish between affirmative and negative covenants

Answer 2

An AFFIRMATIVE COVENANT is recorded restrictions that can LIMIT THE USE of a property to a SPECIFIC purpose (like school, railroad, highway, dwelling, or irrigation system). This type of restriction is classified as an AFFIRMATIVE covenant.

A NEGATIVE COVENANT is another type of recorded restriction which prohibits identified uses of the property. PROHIBITIVE restrictions are classified as NEGATIVE covenant. For example, a typical NEG Covenant prohibits the sale of alcoholic beverages or other activities otherwise allowed to take place on the property.

Question 3

Determine when a covenant runs with title to the land

Answer 3

Recorded CCnRs find future owners of the subdivided lots, a scheme referred to a covenants RUNNING with the LAND. For a covenant to RUN WITH THE LAND and affect title and future owners, the restriction needs to DIRECTLY BENEFIT the property. Thus, to benefit one lot, all lots within the subdivision need to be burdened by the restriction.

Question 4

Understand the circumstances by which CC&nRs may be amended or removed if they pose an unlawful restriction

Answer 4

Restrictions on selling, leasing or encumbrancing RE may NOT unreasonably restrict the marketability of the property, even if the restriction is contained in a trust deed or lease agreement.

However, due-on-sale clauses contained in a trust deed are no longer controlled by CA law and under federal mortgage law, are enforceable on the transfer of any interest in real estate EXCEPT,

• short-term leases up to 3 years not coupled with a purchase option
• intra-family transfers with 1-4 unit owner-occupied residential property on the death of an owner or for equity financing.

CCnRs on the install of Solar are unenforceable if the restrictions significantly increase the cost of the system or decrease its efficiency by:

• resulting in more than a 20% increase in install cost
• decrease the operating efficiency of solar by more than 20%

Question 5

affirmative covenant

Answer 5

An AFFIRMATIVE Covenant is a recorded restriction limiting the use of a property to a specific purpose.

Question 6

negative covenant

Answer 6

A NEGATIVE Covenant is a recorded restriction prohibiting identified uses of a property (like alcohol).

Question 7

Covenants, Conditions & Restrictions (CC&Rs)

Answer 7

Covenants, Conditions n Restrictions (CCnRs) are recorded restrictions against the title to real estate prohibiting or limiting specified uses of the property.

Question 8

Identify common boundaries and common boundary improvements

Answer 8

Most properties have 3 property lines setting the Common Boundary. The location of the common property lines are frequently represented by a demarcation of the property line called a common boundary improvement. Examples of Common Boundary Improvements include:

• party wall
• boundary fence
• tree line
• driveway
• ditch

Question 9

Understand the types of common boundaries and the rights of adjacent property owners relative to them

Answer 9

The rights of adjacent property owners when setting up, maintaining or removing common boundary improvements depend on the type of improvement which exists.

• A party wall is co-owned by the adjacent property owners. the owners share the cost of maintaining the party wall
• boundary fence may be a party wall co-owned by the adjacent property owners. If an owner has an unfenced land, later decides to enclose it by using his neighbors existing fence, they need to compensate the neighbor who built the fence for the pro rata value.
• trees or shrubbery whose trunks stand party on the land of two adjacent property owners are called common boundary trees. Much like the party walls, co-ownership of common boundary trees includes maintenance of the trees.

Additionally, co owners cannot alter or remove party walls or common boundary tress without the consent of the other co-owner.

Question 10

common boundary improvement

Answer 10

A common boundary improvement is an improvement which acts as a demarcation of the property line.

Question 11

common boundary trees

Answer 11

Common Boundary Trees or ‘Line Trees’ are shrubs or trees with trunks which stand partly on the land of two adjacent properties belonging to the adjacent owners. These ‘Tenants in Common’ who own the Line Trees are jointly responsible for maintaining the trees.

Question 12

nuisance

Answer 12

A nuisance is an action which is injurious to health, offensive to the senses, or obstructs the use and enjoyment of surrounding property.

Question 13

party wall

Answer 13

A party wall is a common boundary improvement located on a property line between adjacent properties, such as a wall, fence or building co-owned by the adjacent property owners.

The use and ownership of party walls is best set fort in a written agreement, but these agreements rarely exist. An adjoining property owners cannot remove or destroy a party wall without Adj neighbors consent. An owner can alter a party wall as long as they do not injure the wall or interfere with the adj neighbors use of the party wall.

Question 14

Determine whether an encroachment exists extending onto real estate belonging to another person without their consent

Answer 14

An encroachment is an improvement on real estate which extends onto real estate belonging to another person without their consent. Thus, encroachments frequently take the form of a:
*building
* fence
* driveway
* tree
The concept of an encroachment is closely related to trespass, nuisance and boundary disputes. All involved an interference with another person’s property rights.

All that is needed to establish the existence of an encroachment is a survey locating the property line. If an improvement on one parcel extends over the line onto the an adjacent parcel, it is an encroachment.

Question 15

Understand and apply any remedies available to an owner of property burdened by an encroachment.

Answer 15

Once an encroachment has been determined, the remedies available to the owner include:

• an INJUNCTION ordering the removal of the encroaching structure
• money losses for the diminished value of the property

An owner is entitled to terminate or prevent an unauthorized intrusion onto their RE. However, when a building or other substantial improvement encroached on an owner’s property, the neighbor’s cost of removing the encroachment may far exceed the damage inflicted on the owner burdened by the encroachment. Thus the encroachment is allowed to continue and the owner is awarded money losses for the lost use of their property, called BALANCING HARDSHIPS or BALANCING EQUITIES.

The conditions for balancing hardships , ie merely granting money losses an allowing an encroachment to continue are:

• the owner of the property affected by the encroach may not suffer an irreparable injury due to the continued existence of the encroachment.
• the neighbor who owns the encroaching structure needs to have acted innocently and in GOOD FAITH
• the cost to the neighbor of removing the encroachment needs to greatly exceed the damage.

The owner seeking to terminate an encroachment or recover money losses for the encroachment, they have to act within a THREE YEAR PERIOD of the statue of limitations, unless the losses due to an encroachment are progressive over time. If the owner delays too long before making their claim, the encroaching neighbor earns the right to maintain the encroachment without paying money. The limitations period does not run from the discovery of the encroachment, but from the creation date of the encroachment.

Question 16

boundary dispute

Answer 16

Occasionally, neighboring owners disputing the existence of an encroachment relay on contradictory surveys to establish the property line. If the owners cannot agree on the location of the prop line, the BOUNDARY DISPUTE is to be resolved before any remedy for the encroachment can be granted. Boundary disputes are most frequently resolved by a court. The court will then determine which of the surveys is more accurate. Boundary Dispute is when owners of neighboring property cannot agree on the location of the dividing property line.

Question 17

encroachment

Answer 17

An encroachment is an improvement on RE such as a building, fence, driveway, or tree, which extends onto RE belonging to another person without their consent.

Question 18

laches

Answer 18

In addition to barring relief due to the statutes of limitations, an action seeking money losses or an injunction against and encroachment can be barred by the equitable doctrine of LACHES, also called Prejudicial Delay or Detrimental Reliance.

A prop owner loses their right to enforce the removal of an encroachment or recover money against the encroaching neighbor if the owner delays in making the claim, causing the neighbor to rely on the owner’s acquiescence to their detriment.

Question 19

nuisance

Answer 19

An encroachment qualifies as NUISANCE. Nuisance is broadly defined as any obstruction of another’s use and enjoyment of their real estate. A nuisance is an action which is injurious to health, offensive to the senses or obstructs the use and enjoyment of surrounding property.

Question 20

trespass

Answer 20

An encroachment also constitutes a TRESPASS when it actually rests on the ground of the neighbor’s property. A trespass is any wrongful and unauthorized entry onto RE in the possession of another.

Question 21

equitable easement

Answer 21

Equitable Easement is when the continuance of an encroachment on an owners’ property is allowed, the encroaching neighbor is granted an Equitable Easement to maintain the improvement on the owner’s property.

Further, the neighbor needs to compensate the owner for the rental value of the lost use of their property. The easement lasts for the lifetime of the encroachment.

Question 22

Understand the tenement relationship between two parcels of RE created by an easement

Answer 22

An easement creates a tenement relationship between two parcels of RE since it:

• BENEFITS one property, referred to as the DOMINANT Tenement, whose owner is entitled to use the easement
• BURDENS another property, referred to as the SERVIENT Tenement, the owner’s use of which is subject to the easement.

When an owner whose prop is burdened by an easement interferes with the use of the easement by a neighbor whose property benefits from the easement, the neighbor is entitled to have the use of the easement reinstated. The easement is reinstated by either removal, relocation or modification of the interference.

Further, the neighbor who holds the easement is entitled to compensation for their money losses caused by the servient tenement owners’ obstruction of the neighbor’s use of the easement.

Question 23

Distinguish an appurtenant easement, which belongs to land, from an easement in gross, which belongs to an individual

Answer 23

An easement burdening an owner’s property as an encumbrance on their title is classified as either:

• An Appurtenant easement, meaning the allowed use belongs to and benefits an adjacent property and is said to RUN with the LAND as an interest the adjacent property holds in the burdened RE. An Appurtenant easement is incidental to the title of the property which benefits from its use, it is not a recorded interest on title, and its not a personal right held by the individual who now or previously owned the parcel benefiting from the easement. Accordingly, an Appurtenant easement is recorded as an ENCUMBRANCE on title to the burdened property and it remains on title no matter the owner because it Runs with the Land.
• An Easement in Gross, meaning it belongs to an individual, NOT land, as their PERSONAL Right to a specified use of the burdened RE. An Easement in Gross benefits a particular person - not the RE owned by that person. No parcel of RE may benefit from an easement in gross, since only the individual holding the easement can benefit. An easement in gross is a personal right that is not transferred with the sale of the RE, however the right can be transferred by the easement holder to another person by a writing - unless the transfer of the easement in gross is prohibited by a provision in the document creating the easement.

Question 24

Comprehend different easements for air, light, view, sun, or conservation

Answer 24

A property owners has no automatic right and cannot acquire a prescriptive right, to air, light, or an unaltered view over neighboring properties. However, Property owners can hold an easement created by a grant restricting a neighbor’s ability to erect or maintain any improvement which interferes with the owner’s right to air, light, or view. The easement might be the result of CCnRs which blanket several properties with use restrictions like height (our outdoor room). Easements for light, air, sun and view can only be established by a written agreement between neighboring owners, NOT by implication or prescription.

A relatively different type of easement is the solar easements which restrict an owner’s ability to maintain any improvements interfering with a neighbor’s solar energy system. Solar easements were estb. with the intend of encouraging the productive use of solar energy systems as a matter of public policy.

A conservation easement is a voluntary conveyance of the right to keep the land in its natural, scenic, historical, agri, forested or open space condition to a conservation organization or government agency.

Question 25

appurtenant easement

Answer 25

An Appurtenant easement, meaning the allowed use belongs to and benefits an adjacent property and is said to RUN with the LAND as an interest the adjacent property holds in the burdened RE. An Appurtenant easement is incidental to the title of the property which benefits from its use, it is not a recorded interest on title, and its not a personal right help by the individual who now or previously owned the parcel benefiting from the easement. Accordingly, an Appurtenant easement is recorded as an ENCUMBRANCE on title to the burdened property and it remains on title no matter the owner because it Runs with the Land.

Question 26

conservation easement

Answer 26

A conservation easement is a voluntary conveyance of the right to keep the land in its natural, scenic, historical, agri, forested or open space condition to a conservation organization or government agency.

Conservation easement’s are PERPETUAL in duration and thus are binding on all successive owners of the property burdened by the conservation easement.

Question 27

dominant tenement

Answer 27

A DOMINANT Tenement is the property benefiting from an easement on a servient tenement.

Question 28

easement

Answer 28

An easement is the right to use another’s property for a specific purpose.

Question 29

easement in gross

Answer 29

An Easement in Gross, meaning it belongs to an individual, NOT land, as their PERSONAL Right to a specified use of the burdened RE. An Easement in Gross benefits a particular person - not the RE owned by that person. No parcel of RE may benefit from an easement in gross, since only the individual holding the easement can benefit. An easement in gross is a personal right that is not transferred with the sale of the RE, however the right can be transferred by the easement holder to another person by a writing - unless the transfer of the easement in gross is prohibited by a provision in the document creating the easement.

Question 30

ingress and egress

Answer 30

The most common easement is used for ingress and egress, which creates a right of way allowing one property owner to traverse a portion of another’s land to access their property.

Question 31

servient tenement

Answer 31

A SERVIENT Tenement is a property burdened by a license or easement.

Question 32

solar easement

Answer 32

A relatively different type of easement is the solar easements which restrict an owner’s ability to maintain any improvements interfering with a neighbor’s solar energy system. Solar easements were estb. with the intend of encouraging the productive use of solar energy systems as a matter of public policy.

A solar easement granted in a written instrument needs to state:

• the measured angles by which sunlight is to pass
• the hours of the day during which the easement is effective
• the limitations on any object which would impair the passage of sunlight through the easement
• the terms for terminating the easement