C:5 Encumbrances

What are the many ways to terminate an easement?

1. Express agreement of the parties 2. Lawsuit 3. Abandonment of prescriptive easement 4. Estoppel 5. Merger of the dominant and servant tenements 6. Destruction of the servant tenement 7. Adverse possession 8. Excessive use

How will Easement by Prescription become legal?

1. Open and notorious (not hidden in any way) 2. Continuous for five years 3. Hostile to the interests of the owner (without permission) 4. Under some claim of right or color of title

How to Stop a Lien Foreclosure

1. Owner must file a LIEN RELEASE BOND in county reorder's office where lien was recorded. 2. Amount of bond must = 150% of either the entire claim or portion of the claim allocated to the parcels sought to be released 3. Amount of the bond will be available to cover the lien claimant's possible recovery, including costs of bringing legal action. 4. Can be filed by anyone having interest in the property (lender) etc.

When is the completion time for a mechanic's lien?

1. Work stops or owner uses the improvement 2. Owner accepts the work 3. Work has stopped for 60 continuous days 4. Owner has filed NOTICE OF CESSATION after work has stopped for 30 continuous days

When should a mechanic file for mechanic's lien?

20 days of time the work begins or material was furnished

How long does a mechanic have to file a claim after completion of an improvement?

90 days if owner did not file notice of completion. If owner did file then the contractor has 60 days to file. and everyone else has 30 days from the file date.

Zoning

Act of city or county government. Zoning laws/ordinances specify possible use of property in a defined area. 20th century invention to promote public health and welfare

Lawsuit: Terminating an Easement

Action to quiet title can be brought against anyone claiming an easement

Abandonment of Prescriptive Easement: Terminating an Easement

Although a prescriptive easement is acquired after five years are continuous use, it can also be lost if the easement is unused for 5 years. NOT TRUE for easement by grant, unless conditions state

Lien

An encumbrance that makes property security for the payment of a debt or discharge of an obligation. Can be used to refinance a loan, borrow more money, create a line of credit.

License to Use Land

Another way to transfer right to use land can be a license. PERMISSION GIVEN TO ANOTHER TO COME ONTO ONE'S LAND. Nonexclusive right, which means that the person to whom it is given has no right to exclude others from the owner's land. License is personal property not real property and temporary rather than permanent. Can be terminated at any time without notice.

Restraint on Alienation

Any condition that prohibits a property owner from transferring title to property. EX: Condition that grantor's consent be obtained before grantee can sell the property. VOID AND INEFFECTIVE

What can a condition not require?

Any performance of an unlawful act or an act that would be impossible to perform OR restraint on alienation EX: Prohibit the sale of the property to person of certain race

Who can sign a Mechanic's Lien?

Anyone who performs such work or furnishes the materials used in the work can be: Contractors, subcontractors, architects, registered engineers, licensed land surveyors, machinists, truckers, laborers, equipment lessors, material suppliers

Encumbrance

Anything that has an effect on an owner's: 1. Fee simple title to real estate 2. Use of property Because it can limit the transferability or use of property it can affect property's value

Specific Lien

Applies only to the identified property

General Lien

Applies to all property of the debtor

EX: Landlord Kevin saw a contractor's trust outside her small apartment building on Wilshire. When she asked, they were told that "the building is being remodeled." Kevin never agreed to remodel and manages the building himself. What can she do?

As soon as possible, within 10 days, post a notice of non responsibility at the entrance to the building, and file a copy at the county recorder's office.

Easement by Condemnation

Begins with the condemnation of the right of use on behalf of the holder of the new easement

How to Create an Easement

Can be created by: 1. Contract 2. Express grant from the owner of the easement property 3. Reserving an easement over land that is sold 4. Implication of law 5. Long use 6. Condemnation for public purpose

EX: Drake is general contractor on the building remodeling job. Signed a written agreement for the work with Bigelow, the property manager. Owner decided halfway that the design was all wrong. It has been two months since he stopped the project. He has not filed either a notice of completion or a notice of cessation. Drake is owed a lot of money. What can he do?

File a mechanic's lien

How is a Mechanic's Lien enforced?

Foreclosure. Judicial sale of property Lienholder is paid out of proceeds of sale Owner only gets what is left after everyone has been paid

Remedy for breach of a Condition?

Forfeit of land, much harder result than money damages or injunction that could follow breach of covenant because of SEVERITY of condition if there is ambiguous language in a deed they will consider it a covenant instead of a condition

Best way to enforce CC&R's?

Formal organization of property owners such as homeowner's association Although CC&R's are recorded, they are useless unless known to property owners and have a practical method of enforcement

EX: What kind of lien will the judgement of court be?

General Lien

Can you remove a CC&R?

Generally can be done ONLY by agreement of all those who have right to enforce them. Provisions of CC&R though can be written so that they apply to only the original grantee and not subsequent owners

Adverse Possession: Terminating of an Easement

If owner of the SERVIENT performs the conditions for adverse possession as to the land over which easement lies, the easement right of the owner of the DOMINANT will terminate

Notice of Non responsibility

If unauthorized work begins on property owner must: 1. Post notice on conspicuous place on the land 2. Record a copy of the notice with county recorder *Can also be done by the holder of a lease 1. Must be posted and recorded within 10 days of learning of the work. 2. Must include: *Property Description *Name, address, and property interest of person giving notice *Brief statement that person giving notice is not responsible for any claims arising from the work

Will there every be compensation to an owner for easement by condemnation?

If use acquired (utility line install and maintenance) actually may benefit the land over which easement runs. So no compensation of landowner may not be required. If use such as railroad right-of-way are likely to require payment to the owner for the loss in value to the property caused by the easement

Involuntary Lien

Imposed without the agreement of the owner. Can be done because of the laws that protect creditors and government agencies.

Where else can a covenant be found?

In a lease. EX: tenant may promise to use property for specified reason

Trustee in Bankruptcy

In a liquidation this person holds title to debtor's assets. Responsible for sale of assets, as necessary and issues a trustee's deed to buyer. Some property is exempt from sale and all property is subject first to claims of lien holders

Tax Lien

Involuntary lien that arises form a taxpayer's obligation to pay: 1. Property taxes 2. State Income and Estate taxes 3. Federal Income, Gift, and Estate Taxes

Voluntary Lien

Is one agreed to by the property owner. EX: Mortgage or deed of trust

Marketable Title

Is one that a prudent buyer would accept.

How will someone know there is an easement?

It will be recorded as part of the seller's deed or will be obvious from inspection of property

Dominant Tenement

Land benefited by the easement If sold the new owner has right to use the easement

Servient Tenement

Land over which easement runs If sold new owner takes a title subject to the easement

Example of Easement by Implication of Law

Landowner A sells a parcel of land that can be reached only by traveling over another parcel of land that is also owned by A. It is obvious from examining both parcels that A had used the easement for many years. Even if landowner A doesn't specifically =grant the right to use the easement, it might be implied. Factors taken into account are: nature of the easement, length of time it has been used, whether it could be considered permanent.

What should be filed in response to a mechanic's lien being terminated?

Lien Release - filed with county recorder to prevent cloud on owner's title

Writ of Execution

Lien holder can request from the court. Which directs the sheriff or other officer to sell the property.

Restriction

Limitation of use of land.

What is the time line of filing a mechanic's lien?

Must be enforced within 90 days after filing of the lien claim. If credit is extended, notice of extension must be filed within 90 days after filing the lien CANNOT BE FOR MORE THAN ONE YEAR AFTER COMPLETION OF WORK

EX: Mary decides to move to Alaska and give her home to her nephew. Mary is concerned that the appearance of subdivision be kept for benefit of her old neighbors. Her deed to Neil says that she must approve any future transfer of the property. Can she do that?

No because there is a restriction on his right to sell

EX: Lester is an excellent surveyor, but has a careless office assistant. Lester neglected to note that his assistant transposed some measurements on the plane for Skyway Office Tower. As a result, foundation for tower was poured 11 inches inside a vacant lot past boundary line. A year after building owner of vacant lot saw the mistake. Can she force the owner to demolish the building?

No, to do so would be prohibitively expensive, and courts will not require such an uneconomic outcome. The Skyway owner will probably have to pay damages for it and may be substantial depending on damages caused

How can someone guard themselves against a mechanic's lien?

Obtain a payment bond. Bonding company will compensate the owner if the contractor defaults in the performance of contract obligations (such as payment of workers/suppliers)

Encroachment

Occurs when part of the improvement extends over line between two properties without permission. Can occur on land, airspace, or underground EX: Fences, buildings, even roof of building if it extends into airspace

Who can grant an easement?

Only the fee owner of the SERVIENT tenement. (Whether it is appurtenant or in gross). Once easement is granted, the owner of the dominant tenement can convey the easement along with land.

What can be done if a COVENANT is breached

Other property owners may seek INJUNCTION from a court prohibiting or ordering removal of breach or seek money damages.

Example of a License?

Permission given by an owner to neighbor to store their lawn mower in the owner's garage. Neighbors aren't charged, nor does the owner give them exclusive use of the garage but retains right to tell them to move their lawn mower at any point. Neighbors have license to enter the property to retrieve and return lawn mower. They have no easement, lease, or other interest in property.

Restrictive Covenant Modification form

Person who holds recorded ownership interest in property they believe is subject to unlawful restrictive covenant can submit this to the county recorder. The county recorder will record and may choose to waive recording fee.

Easement in Gross

Personal right to use land Right belongs to person or business and is not appurtenant to ownership interest in land. Can bind future owners of land "run with the land." *Ex. Railroad's right of way is easement in gross. Railroad does not own adjacent land but has the right to travel over the land on which easement lies. Pipelines and power line easements are too. Because it is a personal interest it is not assignable by owner and terminates on owner's death.

If there is no direct contract with the property owner what will be done after a claim has been made for a mechanic's lien?

Preliminary Notice is hand-deliverd or sent to 1. Property owner 2. General Contractor 3. Construction Lender Does not need to be given to anyone under direct contract with owner, performs actual labor for wages, or is entitle to a lien or payment bond

Deed Restriction

Prohibition against a property use that is imposed in the grantee's deed. Homeowner's associations frequently make use of deed restrictions to ensure that the uniform appearance of subdivision is maintained.

Estoppel: Terminating an Easement

Regardless of acquisition can be terminated IF: 1. Not used 2. Owner of the dominant tenement reasonably indicates that no further use is intended 3. Owner of servient makes use of the land in reasonable reliance on the representations of the owner of the dominant IF ALL CONDITIONS ARE MET OWNER OF DOMINANT WILL BE PREVENTED FROM COMPLAINING

EX: Claire's family has owned their home for 20 years. When they were first deeded by the developer, it carried a restriction to only use wood shingles for roofing. Because the fire hazard of a wood roof Clair and other homeowners ask HOA to terminate the restriction.

Restriction is modified by HOA to require fireproof shingles on new or replacement roofs

Easement

Right to use land of another for a particular purpose. Typically right of owner of one land to travel over a connected parcel of land.

Cloud on the Title

Some reason why owner's interest is less than perfect. Property may not be marketable or may be marketable at a reduced price because of the questionable title. Careful buyer may demand that cloud be removed before title to property is conveyed.

Attachment

Sometimes plaintiff believes that defendant will try to sell or conceal assets that might be awarded if plaintiff wins. In that case sometimes the court will seize title to property etc. Restricted primarily to cases involving a business, trade, or profession.

EX: What kind of lien will financing instrument, such as a grant deed be?

Specific Lien

EX: What kind of lien will mechanic's lien given to someone who helps improve property?

Specific Lien

EX: Mary is very concerned that her neighborhood retain its quiet, well maintained atmosphere. Herb, her neighbor, has his house up for sale. He promises Mary that he will require anyone who buys the house to care for it properly. Can he do that?

Yes he can create covenants but it wouldn't transfer over to the owner after the owner he sells it to. Also very hard to find a buyer that will accept that

EX: Harvey returned home to Cali after 6 years. Went directly to his empty house, a building on 20 acres of land. While touring his property the next morning, he was surprised to find a new power line running across the back of his land. A conspicuous and unwelcome addition. Harvey also noticed a dirt road cutting across a corner of his land to the highway from a little house just off his property. Can the power company put up such a line? By what authority? The little house is located on a roadway. Can its owner create a new road across his property?

Yes the power company can do that due to the property being condemned for that purpose. Of course, they would have to send notice but Harvey should have had his mail forwarded. Yes the little house can do that due to easement by prescription. IF they used the new road for five years and fulfilled all other requirements for such an easement

EX: Ann and Sam purchased house which is governed by MHOA. They are aware of the CC&R's on their property. They are aware of the standards but they decided to re do their landscaping next spring so they want to "let it go" till then. They have now a lot of weeds. Is there a problem?

Yes, they are breaking the rules and will hear from HOA soon.

Condition

Generally enforceable by person imposing the condition. IN sale trans it would be seller.

Defendant

Getting sued

Easement by Necessity

1. Another form of easement by implication of law.

What is the Priority of Claims in a Homestead?

1. Any tax lien 2. Holders of liens and encumbrances on homestead 3. Homeowner in the amount of the homestead exemption 4. Levying officer for reimbursement of costs for which in advance has not been made 5. Judgement creditors 6. Homeowner

Termination of CC&R's

1. Expiration of the terms of the restrictions 2. Voluntary cancellation 3. Merger of ownership 4. Government act, such as legal prohibitions against restrictions on races or religions 5. Change in condition that prompts a court action to remove a restriction

How will the court decide on an encroachment process?

1. Extent of encroachment 2. Relative difficulty of removing it 3. Whether the encroaching party acted by mistake

What qualifies as a family unit for homestead exemption?

1. Homeowner and spouse, if they reside together 2. HO and, if cared for and living in, minor child or grandchild of HO, spouse, or deceased or former spouse 3. HO, minor brother or sister of HO or homeowner's spouse or minor child of deceased brother or sister of either spouse 4. HO and father, mother, grandfather, grandmother of HO, spouse, or deceased spouse 5. HO, unmarried adult relative who is unable to care for or support himself or herself 6. HO's spouse and one of the other relatives mentioned in 2,3,4,5 above if that person is unable to care for themselves

Why would a homeowner qualify for 175,000 in homestead?

1. Homeowner, or spouse (who lives with HO) is physically or mentally disabled and unable to engage in substantial gainful employment 2. HO is older than 55 and makes less than 25,000 or if married together makes less than 35,000 and homestead is subject to involuntary sale

Discharge of Debt

A judgement lien can be discharged prior to the end of the term by payment of total damages owed. "Satisfaction" of debt. Should be filed with the clerk of the court. Partial payment of money owed could result in a "release" as to some (but not all) of the property of the debtor.

REV 18: A FAMILY UNIT IS

A. Defined by law

REV 13: BETTY'S PROPERTY INCLUDES AN EASEMENT OVER AL'S LAND. BETTY'S PROPERTY IS

A. Dominant Tenement

REV 9: LIENS AND JUDGEMENTS ARE

A. Encumbrances

REV 2: A MECHANIC'S LIEN CAN BE FILED BY A(N)

A. Laborer

REV 5: A NOTICE OF CESSATION IS APPROPRIATE

A. When work has been stopped for 30 days

What is the acronym for remembering how to terminate an easement:

ADAM E LEE A - Abandonment D - Destruction A - Adverse Possession M - Merger E - Express Agreement L - Lawsuit E - Estoppel E - Excessive Use

Covenants, Conditions, and Restrictions (CC&R's)

ALL serve to control land use. Commonly found in DECLARATION OF RESTRICTIONS filed by a developer when a subdivision plan is recorded. A house in a subdivision probably has CC&R's Commonly known as "restrictions" Because they benefit the other property in the subdivision they usually "run with the land" MEANING when property is sold new owner receives burden and benefits of restrictions.

Easement by Prescription

Acquired in the the same way ownership of land is acquired by adverse possession. MAIN DIFFERENCE: Property taxes need not be paid.

What does the homestead exemption cover?

Any owner-occupied dwelling. Can be: House and Land Mobile home and Land Boat Condo Planned Development Stock Cooperative Community Apartment Project

How much is a homeowner entitled to?

At least 75,000 but being a member of a family unit of two or ore people is 100,000. At least one member of the family must own NO interest in the property.

REV 6: NOTICE OF COMPLETION SHOULD BE FILED WITHIN

B. 10 days after completion of work of improvement

REV 4: WHEN REQUIRED, PRELIMINARY NOTICE OF INTENT TO FILE A MECHANIC'S LIEN SHOULD BE GIVEN

B. 60 Days after Notice of Completion

REV 11: THE RIGHT TO USE ADJACENT LAND TO GO AND FROM A ROADWAY IS

B. Easement

REV 17: MAXIMUM HOMESTEAD EXEMPTION MAY BE CLAIMED BY ANY HOMEOWNER WHO IS

B. Older than 65 years of age

REV 12: BETTY'S PROPERTY INCLUDES AN EASEMENT OVER LAND. AL'S PROPERTY IS THE

B. Servient Tenement

REV 10: SHERIFF IS DIRECTED TO SELL PROPERTY BY A

B. Writ of execution

EX: Harry and Cynthia have a $95,000 mortgage on their houseboat, which has a market value of $130,000. If creditors force sale of the houseboat, are they likely to succeed?

Because the equity the Potters have in their houseboat does not exceed the total amount of their mortgage balance and the $75,000 homestead exemption, creditors probably didn't succeed in forcing a sale

REV 19: HOMESTEAD EXEMPTION FOR A SINGLE PERSON IS AT LEASE

C. $75,000

REV 7: GENERALLY, ACTION TO ENFORCE A MECHANIC'S LIEN CLAIM MUST BE FILED WITHIN HOW MANY DAYS AFTER LIEN IS RECORDED?

C. 90

REV 3: WHICH IS NOT A MECHANIC?

C. Apartment Lessor

REV 14: GEORGE DOESN'T OWN ANY LAND BUT HAS AN EASEMENT OVER AL'S AND BETTY'S PROPERTY TO GO DOWN TO THE RIVER. GEORGE HAS

C. Easement in gross

REV 16: AL SOLD BLACKACRE TO BETTY, GIVING HER AN EASEMENT OVER WHITEACRE. YEARS LATER, AL BOUGH BLACKACRE BACK FROM BETTY. WHAT EFFECT DID HIS PURCHASE HAVE ON THE EASEMENT?

C. Purchase terminated the easement

What kind of property can a homestead be?

Can be community or separate property of spouses, or separate property of single persons. If two unmarried people share ownership, each can claim a separate homestead exemption on dwelling

Easement Created by Express Grant or Express Reservation

Can be done in a grant deed. Wording of deed will depend on whether grantor is the holder of the dominant or the servant tenement. The owner of the land that will be dominant will RESERVE an easement right in the deed to the new owner of the land that will be servant tenement. The owner of the land that will be the servant will GRANT an easement right to the new owner of the land that will be the dominant.

Abstract of Judgement

Can be recorded in any or all of the state's 58 counties.

What can the encroaching party do?

Can fulfill the conditions for an easement by prescription or ownership by adverse possession that may earn the legal right to occupy the land

EX of what? Property owners in Willow Creek subdivision covenant that they will keep buildings in good repair. They also agree to follow certain guidelines for additions/design changes.

Covenants

Most common private restrictions?

Covenants, Conditions, and Restrictions found in a deed

REV 20: HOMESTEAD EXEMPTION FOR A HOMEOWNER WHO IS A MEMBER OF A FAMILY UNIT IS AT LEAST

D. $100,000

REV 1: A CLOUD ON THE TITLE IS

D. A possible impediment to a property sale

REV 15: MARILYN'S 40 ACRE TRACT, PURCHASED FROM ALAN, IS LANDLOCKED, WHICH MEANS THAT SHE

D. Can get an easement by necessity over Alan's adjoining parcel

REV 8: IF UNAUTHORIZED WORK IS BEING DONE, A PROPERTY OWNER CAN

D. File a notice of non responsibility

How to determine the amount of homestead exemption?

Depends on homeowner's status

Judgement

Determination from court of the rights of parties to a legal action. Losing party has right to appeal to higher court. After time for appeal has passed the judgement is final. Can take effect as it was originally made or amended by higher court. The higher court can also order a retail and vacate the original judgement. Judgement granting money can come from Cali or federal court.

Easement by Implication of Law

EX: If subdivision plat map shows street an easement to use those streets is easement by implication of law.

After final judgement becomes a lien ______

Effective against all nonexempt real property of the debtor located in the county of filing. Includes any real property acquired within the term of the lien (usually 10 years).

Bankruptcy

Federal court hearing. A debtor may voluntarily petition for bankruptcy or an involuntary petition may be filed by creditors to force a liquidation and distribution of debtor's assets

EX: Grady sued Len in a Cali court, claims that Len defrauded her 100k in a real estate scam. Grady won her lawsuit and judge awarded her 100k plus interest. Len did not appeal the decision but has not volunteered any money to Grady yet. Now what?

Grady can file her judgement in any county in which Len has sufficient property to cover what she owes. If Len persists in ignoring the judgement, Grady can ask for a writ of execution to sell enough of nonexempt property to cover her award

What happens if a Declaration of Homestead was not filed?

Homeowner's automatic homestead exemption will be subject to any judgements recorded up to that time

What is a Declaration of Homestead and when should you use it?

If a homeowner chooses to sell property. Amount of the exemption will be safe from creditors if homeowner files this and reinvests into a new homestead within 6 months. This might help someone to move into a less costly home and use equity money to pay off some creditors.

How can a mechanic's lien be terminated?

If claimant voluntarily releases it.

Excessive Use: Terminating of an Easement

If easement's use is improper or much greater than originally intended. Owner of the SERVIENT tenement could object, for instance, if land sold for residential purpose was used as a gravel pit and noisy, dusty trucks began to use the easemnt

When will a sale not be ordered in regards to a homeowner's equity?

If equity is no more than: 1. Remaining amount owed on the mortgage loan plus 2. Amount of the homestead exemption

What is homeowner's equity?

Market value of the home less any liens and encumbrances. If homeowner's equity is greater than the amount of the exemption, home can be sold at court's direction to satisfy any unpaid creditors.

Express Agreement of the Parties: Terminating an Easement

May be accomplished by quitclaim deed from owner of the dominant tenement to the owner of servient. Or from the owner of an easement in gross to the owner of the land that easement runs on

Notice of Completion

May be filed by owner with county recorder within 10 days after work is completed

Priority of Claims

Order in which creditors are paid Priority of claims against a homestead has been established by law.

Homestead

States provide homeowners with special protection from creditors. Some or all of the value of the owner's equity in a homestead is exempt from the claims of unsecured creditors.

Plantiff

The person who files a lawsuit against a defendant

What can the one being encroached do?

They can bring legal action

What is the owner never dealt with the subcontractor such as a plumber, electrician, or roofer?

They can still claim a mechanic's lien

Example of Easement by Necessity

Tract of land is landlocked. Owner of that has an easement by necessity implied by law over any land of the seller that is adjacent and provides access to the roadway. If seller owns no land adjacent to the landlocked parcel there will be implied easement over the land that provides the most efficient road access, even though the land now belongs to a "stranger" - provided that both parcels were once owned by the same person

Destruction of the Servient Tenement: Terminating an Easement

Two buildings may share a wall called a PARTY WALL. Owner of each building has easement over the other's property to the extent that the wall intrudes on that property. If buildings are demolished and wall destroyed, easement is terminated.

Mechanic's Lien

Used to help secure payment for any labor, service, equipment, materials used in construction of improvements to real estate. SO important in California that any document to waive the right to a mechanic's lien has been held against public policy, void, and unenforceable.

Merger of the Dominant and Servient Tenements: Terminating an Easement

When owner of one becomes owner of both the easement is extinguished. Can be revived by subsequent sale of the DOMINANT tenement.

EX: Al owns property divided into 2 lots. A and B. Sells lot B to Betty and she builds a house. Deed to Betty conveys an easement over Al's driveway to get to her land. If Betty sells her land, the new owner will be entitles to use driveway to go and from the road. If Al sells lot A the new owner must allow lot owner of B to use driveway

Yes

EX: Harry and Cynthia, married, own a houseboat docked at Lake Sam as community property. Do they qualify for homestead exemption?

Yes as long it is their principal dwelling and place of residence.

Can limitations on property benefit some owners?

Yes, regulated to maintain property improvements for benefit of all property owners etc.

Most common public restrictions?

Zoning ordinance

Covenants

is a PROMISE 1. to do something 2. to refrain from doing something