NY Real Estate Chapter 3.B: Legal Issues - Liens & Easements

Easement for Light and Air

A type of negative easement. 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.

Lien

Claim or charge against the property as a right to keep possession of property belonging to another person until a debt owed by that person is discharged. The lien has to be dealt with when purchasing or selling property. It is discoverable as it is public record and can be obtained via title report.

Written Release Agreement

Easement Termination - easement owner gives up right to the easement.

Judgement Lien

General Lien - A judgment lien is a court ruling that gives a creditor the right to take possession of a debtor's real or personal property if the debtor fails to fulfill his or her contractual obligations

Income Tax Line Lien

General Lien - tax lien on your income taxes

Adverse Possession

another term for Easement by Prescription. An example would be someone using another property owner's driveway to access their property over the course of 20 years. The conduct of the parties one adverse to the other, the one who was doing the act of using the other's property over time gains an easement over that property. Common examples are walk ways or driveways.

Encroachment

A building, part of a building, or obstruction which intrudes upon or invades a highway or sidewalk or trespasses upon the property of another.

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.

Subordination Agreement

A legal document used to make the claim of one party junior to (or inferior to) a claim in favor of another.

Profit

A legal term describing the rights to take product of the soil from the land (soil, mineral, timber) and sellable or transferring that product. Profits are created in the same manner as easements by a grant or deed. The profit can be more valuable than the land or property itself.

Involuntary Lien

A lien imposed against property without consent of the owner, e.g., taxes, special assessments.

Tax Lien

A lien imposed by law upon a property to secure the payment of taxes.

General Lien

A lien that attaches to all personal and real property of a person or firm.

Specific Lien

A lien that only binds to a specific asset or property.

Property Survey

A map of the property that will disclose your boundary lines, easements, encroachments, and improvements on the property. They are created by a licensed surveyor and give a "birds eye view" of the property in question. They are linear drawings of the property. Property surveys are also useful to lenders so that they can get objective details.

Dominant Tenement

A parcel of real property that has an easement over another piece of property (the servient estate).

Servient Tenement

A parcel of real property that is encumbered by an easement of a dominant estate. Also known as the servient estate.

Easement

A right to cross or otherwise use someone else's property for a specified purpose.

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.

ACRIS - Automated City Register Information System

A service provided in NY that allows you to search for easements. You can see what has been recorded against a property. Sometimes you'll be able see easement agreements, or you'll have to locate the deed to find the language regarding the easement.

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 (easement and license holders are an example.

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.

Easement by Condemnation

An easement created by the government or government agency that has exercised its right under eminent domain.

Easement in Gross

An easement that benefits an individual or a legal entity, rather than a dominant estate.

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.

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.

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.

Encumbrance

Any right to or interest in the land interfering with its use or transfer, or subjecting it to an obligation.

Abandonment

Easement Termination - If no one is using the easement for a term of years, the owner of the servient tenement can claim that the easement no longer exists.

Easement no longer relevant

Easement Termination - The use of the easement becomes obsolete. Ex. The dominant tenement no longer needs to use the servient tenement's roadway since a new road was built giving the dominant tenement access to their property.

Same property owner

Easement Termination - properties in question become owned by the same property owner. Therefore, relinquishing the need for the easements.

Time limit

Easement Termination - the existence of the easement is used for only a specified time.

Estate & Inheritance Tax Lien

General Lien - A general estate tax lien arises when a decedent's estate fails to pay its estate tax liability. The general estate tax lien attaches to all of the property that is included in the decedent's gross estate. The decedent's gross estate includes all property owned at death, plus certain other assets over which the decedent had sufficient control. The lien does not attach to property that is outside of the decedent's gross estate or property (that is part of the gross estate) that is used to pay court-approved estate expenses. The general estate tax lien is enforceable for a period of ten years following the decedent's death.

Writ of Attachment

General Lien - A writ of attachment is a form of prejudgment process in which a court orders the attachment or seizure of property specifically described in the writ. The property is seized and maintained in the custody of a designated official, who is usually a U.S. Marshal or law enforcement officer, under court supervision. A writ of attachment is generally used to freeze assets of a defendant pending the outcome of a legal action.

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.

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.

License

Permission granted by a party to another party as an element of an agreement between both parties. OR Is the permission to do something on the land. Generally granted in writing but can be granted orally. It is a personal privilege. The license can be revoked depending on the terms. If the license is given orally or thru conduct, in NY state, the licensor (the person giving the license) is able to revoke it only by giving 10 days notice. A license is not a permanent right. It is a temporary privilege given by the licensor.

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.

Mortgage

Specific & Voluntary Lien - 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.

Lis Pendens

Specific Lien - A legal document, filed in the office of the county clerk giving notice that an auction or proceeding is pending in the courts affecting the title to the property. (Not applicable in commission disputes.)

Tax Lien

Specific Lien - A lien imposed by law upon a property to secure the payment of taxes. A tax lien is a claim the government makes on your property, including real estate and other assets, when you're past due on your income taxes. If you don't take care of a federal tax lien, a tax levy could come next. A tax levy is the actual seizure of property to pay taxes owed.

Mechanic's Lien

Specific Lien - A security interest in the title to property for the benefit of those who have supplied labor or materials that improve the property.

Real Property Tax Lien

Specific Lien - A tax lien on property tax on local real estate that is calculated according to the fair market value of the real estate. That is, a real property tax is assessed as a percentage of the amount for which the owner would be able to sell the property in the current market. As a result, real property taxes increase when the local property market is bullish and decline when it is bearish.

Easement by Grant

The creation of an easement by one party expressly transferring the easement to another party.

Possessory

The intent and right of a person to occupy and/or exercise control over a particular plot of land (lien holders are an example).