Real Estate Principles - Encumbrances

Easements may be terminated or extinguished in eight ways:

1. Abandonment: Abandonment is the obvious and intentional surrender of the easement. Non-use: If a prescriptive easement is not used for a period of five years, the easement is terminated. 2. Destruction of the servient tenement: If the government takes the servient tenement for its use, as in eminent domain, the easement is terminated. 3. Adverse possession: The owner of the servient tenement may, by his or her own use, prevent the dominant tenement from using the easement for a period of five years, thus terminating the easement. 4. Merger: If the same person owns both the dominant and servient tenements, the easement is terminated. 5. Express release: The owner of the dominant tenement is the only one who can release an easement. A usual way would be to sign a quitclaim deed. 6. Legal proceedings: In order to terminate an easement, the owner of the servient tenement would bring an action to quiet title against the owner of the dominant tenement. A lawsuit to establish or settle title to real property is called a quiet title action or an action to quiet title. 7. Estoppel: Unless created by express grant, an easement may be terminated by non-use and the property owner has reason to believe that no further use is intended. Example: John is a farmer who owns some land. Bob, the son of a neighboring farmer, cuts through John's field on the way to high school. Upon graduation, Bob leaves for college and stops taking the short cut through John's field. Farmer John, seeing that the easement was no longer in use, fenced his field. John's action showed that he relied on Bob's conduct (no longer taking the shortcut). Therefore, the easement terminates through the estoppel. 8. Excessive use: Depending on the terms of the easement, excessive use can terminate the easement. Example: Dan Smith owns a Victorian style 6-bedroom, 2-story house on 1/2 acre. Even though he has street access, he asked his neighbor Betty if he could use her private dirt road at the back of her 1/2 acre to get to his home because it was faster. Betty agreed and gave him an easement to use her private dirt road. In order to pay for an upcoming trip, Dan decided to rent out all the bedrooms in his home to college students. He rented each room to four students. Therefore, the traffic across the easement increased dramatically. Betty, understandably upset, terminated Dan's easement due to excessive use.

Requirements for Declaration of Homestead

1. Name of the declared homestead owner 2. Description of the declared homestead 3. Statement that the declared homestead is the principal dwelling of the declared homestead owner. 4. The declaration of homestead must be signed, acknowledged, and recorded to take effect.

Notice of Abandonment

A homestead can be terminated by recording a notice of abandonment, by conveying the property, or through an execution and forced sale. An owner must file an Abandonment of Homestead form in order to obtain a homestead on a new property. If the owner moves from the homesteaded property and does not wish to file a new declaration of homestead, the original homestead remains valid. Sale of the property automatically causes the homestead to terminate. However, neither death of the homesteader nor destruction of the property terminates the homestead.

lis pendens

A pending lawsuit

homestead declaration

A recorded notice a property owner files to protect the equity in his or her real property. The declaration of homestead only protects real estate dwellings—not dwellings that are personal property, such as mobilehomes on leased land, houseboats, or other waterborne vessels.

condition subsequent

A restriction, placed in a deed at the time of conveyance, upon future use of the property. It is a condition placed on the property that comes into play subsequent to the transaction. Upon breach of the condition subsequent, the grantor may take back the property.

abstract of judgement

A written summary of a judgment which states how much money the losing defendant owes to the person who won the lawsuit. it is a general lien on all non-exempt property owned or acquired by the judgment debtor for 10 years, in the county in which the abstract is filed. The court may force the sale of the property to satisfy the judgment by issuing a writ of execution. The sale is called an execution sale.

variance

An allowable difference to the zoning laws for a structure or land use.

appurtenant easement

An appurtenance is anything used for the benefit of the land. An easement appurtenant has a servient and a dominant tenement. The owner whose land is being used is the one giving the easement and the land is the servient tenement. The servient tenement is the one encumbered by the easement. The person's land receiving the benefit of the easement is known as the dominant tenement. An easement appurtenant automatically goes with the sale of the dominant tenement. To be valid, the dominant and servient tenements of an appurtenant easement do not have to be mentioned in the deed (unlocated), nor do they have to touch each other (abut).

easement by necessity

An easement allowed by law as necessary for the full enjoyment of a parcel of real estate; for example, a right of ingress and egress over a grantor's land

non-financial encumbrance

Encumbrance that affects the use of the property. Examples: Easements, building restrictions, and zoning requirements and encroachments,.

Homestead property

Home (primary residence) occupied by a family that is exempt from the claims of, or eviction by, unsecured creditors

easement in Gross

Individual interest in someone else's land; no dominant tenement. Commercial may be assigned, conveyed or inherited; examples: utility lines, sewer, water

special assessments

Levied against property owners to pay for local improvements, such as underground utilities, street repair, or water projects.

condition

Much the same as a covenant, a promise to do or not do something (usually a limitation on the use of the property), except the penalty for breaking a condition is return of the property to the grantor.

license

Permission to use property. A license to use may be revoked at any time.

encrouchment

Placing a permanent improvement such as a fence, wall, driveway or roof, so that it extends over the lot line into adjacent property owned by another. An owner has three years in which to sue the neighbor to have the unauthorized encroachment removed.

condition precedent

Requires that a certain event, or condition, occur before title can pass to the new owner. It is a condition that must be taken care of preceding the transaction.

automatic homestead

The automatic homestead is just that—automatic. Anyone living in his or her home has an automatic homestead exemption protecting the equity. A declaration of homestead does not need to be filed. The automatic, or statutory homestead exemption, only applies on the forced sale of the property. The homeowner must live continuously on the property from the date the judgment creditor's lien attaches until the date the court determines that the dwelling is a homestead. A dwelling is the place where a person resides.

Implied Grant or Reservation

The existence of an easement is obvious and necessary at the time a property is conveyed, even though no mention is made of it in the deed.

judgement

The final determination of the rights of parties in a lawsuit by the court. A judgment does not automatically create a lien.

mechanics lien - statuatory procedure

The four steps to be taken include: (1) the preliminary notice, (2) the notice of completion, (3) no notice of completion, and (4) foreclosure action.

attachment lien

The process by which the court holds the real or personal property of a defendant as security for a possible judgment pending the outcome of a lawsuit.

easement

The right to enter or use someone else's land for a specified purpose.

Express Reservation

The seller of a parcel who owns adjoining land reserves an easement or right-of-way over the former property. It is created at the time of the sale with a deed or express agreement.

Express Grant of easement

The servient tenement, or the giver of the easement, grants the easement by deed or express agreement.

notice of non-responsibility.

This is a notice that must be recorded and posted on the property to be valid, stating the owner is not responsible for work being done. This notice releases the owner from the liability for work done without permission. The owner must record this notice within 10 days after discovering the unauthorized work. The notice normally is posted with a commercial lease at the beginning of a job, if a tenant is ordering the job.

Downzoning

Zoning is changed from a high-density use to a lower density use, such as commercial (C-1) or light manufacturing (M-1) to residential (R-1), or from residential to conservation.

Public restrictions

Zoning laws.

Homestead exemption

a lien that protects a certain amount of equity in a person's home by limiting the amount of liability for certain debts against which a home can be used to satisfy a judgment. The amount protected varies depending on the age, marital status, and income of the property owner. A homestead exemption does not stop the sale of the property. Its purpose is to ensure that the homeowner receives the amount of the exemption before the creditors are paid from the sale proceeds.

restriction

a limitation placed on the use of property. It is usually placed on property to assure that land use is consistent and uniform within a certain area. Restrictions may be placed by a private owner, a developer, or the government. Private restrictions are placed by a present or past owner and affect only a specific property or development. Zoning (public restriction) is an example of government restrictions that benefit the public.

coventant

a promise to do or not do certain things. The penalty for a breach of a covenant is usually money damages or an injunction. An injunction is a court order forcing a person to do or not do an act, such as violating a private restriction. An example of a covenant might be that the tenant agrees to make certain repairs, or that a property may be used only for a specific purpose.

grandfather clause

allows an owner to continue to use structures, which are now non-conforming with the new zoning laws.

Private restrictions

are created in the deed at the time of sale or in the general plan of a subdivision by the developer. For example, a developer may use a height restriction to ensure views from each parcel in a subdivision. Restrictions are commonly known as CC&Rs or covenants, conditions, and restrictions. The CC&Rs for a new subdivision are listed in a recorded Declaration of Restrictions, which gives each owner the right to enforce the CC&Rs.

easement by prescription

may be created by continuous and uninterrupted use, by a single party, for a period of five years. The use must be against the owner's wishes and be open and notorious. No confrontation with the owner is required and property taxes do not have to be paid. The party wishing to obtain the prescriptive easement must have some reasonable claim to the use of the property.