Real Estate: Private Restrictions on Ownership

What are Encumbrances? Are restrictions and limitations on the fee simple ownership rights that generally run with the land –Private –Public

Private Encumbrances Covenants, conditions, restrictions Liens Easements Profit a prendre Adverse possession Encroachments

Covenants, Conditions, Restrictions (CC &Rs) Are private encumbrances that limit the way a property owner can use a property Deed Restrictions –Created by developer –i.e. land across from Central Baptist Church in College Station

What is a Lien? Is a claim on a property as either security for a debt or fulfillment of some monetary charge or obligation –i.e. mortgage on property to borrow money Voluntary Lien –Placed on property by owner i.e. mortgage Involuntary Lien –Protect the interest of persons who have valid claims against the owner of real property i.e. unpaid taxes, lawsuit

Liens Specific Liens –Created to protect creditors using a particular parcel of real estate as security for repayment. 2 types: 1.Mortgages Mortgagor (gives property rights, i.e. homeowner), Mortgagee (receives property rights, i.e. bank) Foreclosure 2.Mechanics Liens (aka construction lien) General Liens –Placed on all of the property that might be owned by an individual, including any real estate i.e. judgment lien, income tax lien (involves judicial sale)

What is an Easement? Easement Is a right given to one party by a landowner to use the land in a specified manner i.e. utility, oil & gas, ranch access 2 types of Easements 1.Easement Appurtenant 2.Easement in Gross

2 Types of Easements 1.Easement Appurtenant –Exists when an easement is legally connected to an adjoining property Dominant Estate (Benefits from Easement) Servient Estate (Burdened by Easement 2.Easement in Gross –Only has servient estate (no Dominant Estate) i.e. Utility company, not adjoining property, benefits from easement

Easement Example

How do you create an Easement? 3 Methods of Creation 1.Express Grant or Express Reservation 2.Easement by Implication 3.Easement by Prescription

Creation of Easements 1.Express Grant or Express Reservation –Express Grant i.e. Expressly grant neighbor the right to use a portion of property for driveway (created by Grantor) –Express Reservation i.e. reserve a right of passageway (created by Grantee)

Creation of Easements 2.Easement by Implication –Right to use land may be implied from the factual circumstances even when an easement is not expressly created –Reflects intentions of the parties Implied Grant Use of property allowed, despite having made not mention of an easement (Grantor) Implied Reservation Occurs when continued use of the property is allowed after property is (Grantee) –Both arise from necessity Land would lose all value in no access allowed

Creation of Easements 3.Easement by Prescription –May be created when someone other than the owner uses the land openly, hostilely, and continuously for a statutory time period. Usually between 7 to 20 years, uninterrupted –Lesson: Never let anyone use property w/out permission Interrupt property use at intervals

Nature of Easements Permanent in nature –Easements run with the land Easement is not a license –Licenses are revocable

Termination of Easements Agreement Merger Abandonment

Termination of Easements Agreement –Parties affected by easement may expressly agree to terminate their respective rights in the easement Must be written Can be costly, and have time restrictions Merger –Merger of dominant and servient estate can terminate easement i.e. Servient estate could purchase dominant estates parcel

Termination of Easements Abandonment –If the benefited party does not exercise his or her rights to use the servient estate over an extended period of time

Conservation Easement A type of Negative Easement (vs.Affirmative Easement) –Prevents specific uses of the real estate by the owner i.e. protects land from being developed. Preserves natural area

Profit a Prendre Is a nonpossessory interest in real property that permits the holder to remove part of the soil or produce of the land –i.e. minerals, soil, produce, animals

Encroachment Is an unauthorized invasion or intrusion of a fixture, a building, or other improvement onto another persons property –i.e. fence cuts across adjoining property If not confronted, other party may claim legal right to adverse possession

Adverse Possession Allows individuals to acquire title to land they do not own because they have openly possessed it for a statutory period of time Squatters Rights -- –Actual and exclusive i.e. building a house on land or farming land –Open and notorious, hostile, & continuous Same as prescriptive easement –Claim of Right Adverse possessor must have a basis for believing he/she owns property