Chapter 3.B - Legal Issues: Liens & Easements
[3.B.3] Examples of Specific Liens
1. Mortgage 2. Real Property Tax Lien 3. Mechanic's Lien 4. Lis Pendens (Notice of Pendency)
[3.B.2] Voluntary Lien
A contractual or consensual lien that is created by an action taken by the debtor, such as a mortgage loan to buy real estate or signing a document.
[3.B.7] Subordination Agreement
A legal document used to make the claim of one party junior to (pr inferior or) a claim in favor of another.
[3.B.2] Involuntary Lien
A lien imposed against property without consent of the owner. ex: taxes, special assessments,
[3.B.9] Dominant Tenement
A parcel of real property that has an easement over another piece of property (the servient estate). -Receiving benefit
[3.B.9] Servient Tenement
A parcel of real property that is encumbered by an easement of a dominant estate. -receiving burden
[3.B.9] Easement
A right to cross or otherwise use someone else's property for a specified purpose. -An easement owner does NOT own the land, but has various rights to use the land -Complex process almost always involving court to cancel an easement
[3.B.2] Lien
A right to keep possession of property belonging to another person until a debt owed by that person is discharged. -Dealt with when purchasing property. -Liens are recorded in the public record and therefore, available for anyone to see and review. -Often used as a means to recover a debt, or money owed, by another individual
[3.B.3] Mechanic's Lien
A security interest in the title to property for the benefit of those who have supplied labor or materials that improve the property.
[3.B.16] Non-Possessory
A term of the law of property to describe any of a category of rights held by one person to use land that is in the possession of another.
[3.B.11] Party Wall
A wall built along the line separating two properties, partly on each, which wall either owner, the owner's heirs and assigns has the right to use; such right constituting an easement over so much of the adjoining owner's land as is covered by the wall. That wall is sufficient structurally for the property. Both owners share the wall.
[3.B.11] Easement by Implication
An easement that is NOT created by express statements between the parties; but as a result of surrounding circumstances that dictate that an easement must have been intended by the parties
[3.B.6] Encumbrance
Any right to or interest in the land interfering with its use or transfer, or subjecting it to an obligation.
[3.B.4] Lis Pendens notes (5:12)
Common way a Lis Pendens will get filed- ex: If property owner signs a contract to sell and for some reason refuses to close or unable to, very often the purchaser will have a lis pendens filed b/c it'll be the purchaser's claim that the closing should've occurred but for the fault of the seller and the purchaser would want to make sure that perspective purchases know there was a claim on the property. Happens because real estate values keep going up.
[3.B.14] Profit
Describing the right to take products of the soil, minerals, timber, etc. from the land. -sale-able and transferable
[3.B.4] Estate & Inheritance Tax Liens
Fed Gov't IRS and NYS Department of Tax and Finance have claims for taxes and if they have such a lien, they will record against the property. Create a lien and file it where the property is located. -**State and Federal liens always take priority over other liens.
[3.B.5] Mechanic's Lien Notes
Plumbers, electricians, etc. if they're not getting paid, they can file a lien by law.
[3.B.10] Light and Air Easement
Prevent property from not having sufficient light and air by windows. Municipalities will require properties to be built a certain way that will allow light and air.
[3.B.5] Mortgage Notes
Responsibility of property owner and their attorney and purchaser of property so the bank is comfortable to loan. Bank's attorney creates the mortgage.
[3.B.14] Appurtenances
Something which is outside property itself but belongs to the land and adds to its greater enjoyment such as a right-of-way or a barn or a dwelling. Inherit or automatic rights owned with the property.
[3.B.14] License
Temporary privilege/permission to do something on the land, granted in writing or orally. -can be revoked, depending on terms. with 10 day written notice. ex: hunting, fishing, etc on specific piece of land.
[3.B.11] Easement by Grant
The creation of an easement by one party expressly transferring the easement to another party If a public use, usually called "Dedication of the Land"
[3.B.10] Negative Easement
The dom estate has the right to restrict the use of servient estate. ex: Property B is between the Lake and Property A. Negative easement will prevent Property B from building a high structure that will block Property A's view of the lake.
[3.B.16] Possessory
The intent and right of a person to occupy and/or exercise control over a particular plot of land.
[3.B.16] Right-Of-Way
The right to pass over another's land pursuant to an easement or license -Servient tenement gives the right of way
[3.B.16] Easement for Light and Air
This easement prevents an adjoining land owner from building any structure that would obstruct the passage of light or air from reaching the dominant land. -A type of negative easement.
[3.B.4] Judgment Liens
When a court issues a judgment is usually made against the person who OWNS the property, while the lien is made against the property. -City marshals or sheriffs enforce the execution of a judgment -MUST be recorded on the county clerk's records in order to be effective -*IN EFFECT when the judgment is entered in the records. -The lien holder must provide a 'Satisfaction of Judgment', which is recorded in the public record. (To show that the lien does not exist anymore) -These liens remain in effect for 20 years as long as the 9th year, you file a renewal for the lien. -Filing bankruptcy discharges the lien.
[3.B.6] **Effects of Liens on Title
-All liens must be resolved BEFORE transfer of title
[3.B.4] **General Liens
-Note that liens take priority over one another based on the date they are filed. Older liens will have to be satisfied FIRST, while the newer liens are paid off only after the older liens are terminated. Older > New : Priority Priority Position: Tax 1st Position: Mortgage 2nd Position: 2nd Mortgage 3rd Position: ~Construction Lien ~Mechanic's Lien
[3.B.12] Easements Termination
-Release Agreement -Same property owner -Abandonment -Easement no longer relevant -Time limit
[3.B.11] Types of Easements
1. Easement by Necessity 2. Easement by Prescription 3. Easement by Grant 4. Easement by Implication 5. Easement by Condemnation
[3.B.9] Easements Can Be..
1. In gross 2. Appurtenant [specific to a property] 3. Negative [preventing] 4. Affirmative [allowing]
[3.B.2] Types of Liens
1. Involuntary Liens 2. Voluntary Lien
[3.B.3] Examples of General Liens
1. Judgment 2. Income Tax Lien 3. Writ of Attachment 4. Estate & Inheritance Tax
[3.B.9] Kinds of Easements
1. Light and air 2. Common wall 3. Riparian (water right) 4. Right of way [if no other way to get to their property but through yours]
[3.B.14] Appurtenance Rights
1. Profit Rights 2. License Rights [Hunting, Coal mining, gas mining, planting, lease] 3. Air-rights [flying vehicles, building upwards] 4. Subsurface rights [ dig the property, bury item in the property, dig for geothermal power, dig for minerals] 5. Water rights [take water from the property, dig wells, use the source of water]
[3.B.13.1] Encroachment
A building, part of a building, fence, road, or obstruction which intrudes upon or invades a highway or sidewalk or trespasses upon the property of another ex: Roof lines, driveways, antennas, fences, etc. We care because we want our own property and personal space.
[3.B.3] Lis Pendens
A legal document, filed in the office of the country clerk giving notice that an auction or proceeding is pending in the courts affecting the title to the property. A law suit in the process that will affect the real estate. -Latin for "Notice of Pendency" -not applicable in commission dispute
[3.B.3] Tax Lien
A lien imposed by law upon a property to secure the payment of taxes.
[3.B.5] Real Property Tax Lien Notes
A lien imposed by law upon a property to secure the payment of taxes. -Communities provide services through taxes. -Bill paid will result in interest, penalties, and LIENS.
[3.B.3] General Lien
A lien that attaches to all personal and real property of a person or firm. ex: Judgment, credit card not paid, IRS lien
[3.B.3] Specific Lien
A lien that only binds to a specific asset or property. ex: Mortgage, Mechanic's Lien
[3.B.13.1] Property Survery
A map of the property that will disclose your boundary lines, easements, encroachments and improvements on the property. -birds eye view of the property -gives clarity on what's on the property, any encroachments, access to public road, etc. -in cities, shows party wall, features of other lots, air rights, etc.
[3.B.11] Easement by Condemnation
An easement created by the gov't or gov't agency that has exercised its right under eminent domain. -If gov't believes it needs a property for a use, it can use its power of 'eminent domain' to get it across. -There is a compensation process whereby parties will determine fair value of property where gov't will compensate the property owner.
[3.B.9] Easement In Gross
An easement that benefits an individual or a legal entity, rather than a dominant estate. -Often called "Commerical Easements in Gross" -'Gross' means of large; Usually cover a large area -Most often like utility easements, gov't roadway easements used for purposes of an entire development such as electricity lines underground, drainage systems, etc. -gov't will have right to go in your property to MAINTAIN these systems and landscape being, etc.
[3.B.9] Easement Appurtenant
An easement that benefits the dominant estate and "runs with the land". In other words, an easement appurtenant generally transfers automatically when the dominant estate is transferred. -Usually 2 land owners involved. -Flag Lot does not require easement. ex: Easement needed if Plot B must go through Plot A to get the lot, B can not do anything to that land although they can go through it because it is property of Plot A. Thus, Plot A is the servient and Plot B is the dom.
[3.B.2] Mortgage
An instrument in writing, duly executed and delivered, that creates a lien upon real estate as security for the payment of a specified debt, which is usually in the form of a bond. Will tell: -amount of $ that is owed of the property to the owner -how long can be paid -interest rates
[3.B.15] ACRIS
Automated City Register Information System http://a836-acris.nyc.gov -Physical office that maintains documents effecting real estate in the city. -can access online and can be used to see what is against your property.
[3.B.11] Easement by Prescription
Implied easements granted after the dominant estate has used the property in a hostile, continuous, and open manner for a statutorily prescribed number of years. -Created over time by a particular type of use. -Without owner's or servient's estate permission -Given if done for usually 10+ years ex: for 20 years, they drive over someone's property in order to get to their property. [Adverse possession]
[3.B.8] **Deed Restrictions
In foreclosure, liens are in default. -foreclosure can recover more money than is even owed to the bank, SURPLUS MONEY. thus, lien is paid off, no obligations by the liens. Parties can reserve claim to the surplus money and can be divided by court order.
[3.B.4] Corporation Franchise Tax Liens
In order deliver clear title, a corporation will have to demonstrate to purchaser and purchaser's title company that the property owner of the corporation has paid all applicable corporation franchise tax returns. -www.dos.ny.gov <- can be used to see the standing of a corporation -if corporation ha not paid taxes, state will strip it of its power. IRS will file a lien against the property. Property owner can not sell without clearing out liens, to an extent. To resolve, the corporation must file those tax returns asap.
[3.B.11] Easement by Necessity
Parcels without access to a public way may have an easement of access over adjacent land if crossing that land is absolutely necessary to reach the landlocked parcel and there has been some original intent to provide the lot with access. -Created when a property has no access to a public road and is landlocked. If not given access, property owner may go to court for their Right-Of-Way. -Municipalities have an interest in seeing that house is useful, there will be taxes charged. If a house is landlocked and useless, it will often be abandoned and no one will pay taxes for it.
[3.B.10] Affirmative Easement
ex: Dom estate has the right to cross servient estate for legitimate reason.