In every real estate contract, property owners are presented with a list of activities/actions that are, for whatever reason, forbidden to take place on said property. These disallowed activities listed in real estate contracts are known as restrictions. In this entry, we will explore restrictions that are applied to private property and their ramifications.
Restrictions leveed on private property are classified as encumbrances. An encumbrance is a burden on the title of a piece of property. These burdens deal with claims against, limitations, and liabilities against a piece of real estate that dictate a property owner's use of property. These encumbrances are as follows:
1. Covenants, Conditions, and Restrictions (CC&R)
CC&R's are the fundamental restrictions, built into real estate contracts, that each property owner must follow. CC&R's are often a simple set of guidelines, written into the deed, that are usually outlined by the homeowners association that the property falls under. These rules, maintained by homeowners associations, are often put in place to ensure the maintenance of property value in said neighborhood, and are often aesthetic issues dealing with structures. In my personal experiences with CC&R's, I've learned that they are, in most cases, non-negotiable. Some years ago, my family was attempting to sell our home. After agreeing in principle to sell our home, the prospective buyers expressed their desire to build an entry gate at the end of the driveway. After almost finalizing the sale, we needed only the approval of the homeowners association for the gate construction to complete the deal. However, the CC&R's of our neighborhood forbade the construction of structures at the end of driveways. As a result, the deal fell through and we lost the sale.
2. Liens
A lien is a claim against property made by someone in order to secure the payment of a debt. The most common form of lien is a mortgage, where a property owner borrows money to pay for a house, with the house serving as collateral. Collateral is an asset (the house) that serves as security on the value of the loan. Should the loan default, the creditor has the right to repossess the house in lieu of the outstanding loan balance. Liens can be voluntary or involuntary, as well as specific or general in nature. Voluntary liens are placed on the property by the owner (mortgages), whereas involuntary liens serve to protect the interests of persons/entities that have claims against the property (tax liens). Specific liens are placed on specified portions of real estate to protect creditors that have interest in these items, i.e. a mortgage on a house or a construction lien on construction of structures. Conversely, general liens are leveed against the entirety of a piece of property, not just specifically an item/object on the property.
3. Easements
Easements are rights granted by property owners to a specific party that allow use of a piece of property in a certain manner. In the event of an easement, the property owners maintains ownership of the property, but shares access/usage of it with the easement holder. There are two different types of easements: easement appurtenants and easements in gross. In an easement appurtenant, there is a dominant estate, or the property benefitting from the easement, and a servient estate, the property that is burdened by the easement. A common easement appurtenant occurs when a piece of property is landlocked by another piece of property. In order to access the landlocked property, the owner must negotiate an easement where the surrounding property owner grants passage over his land for access to the landlocked property. In this example, the landlocked property is the dominant estate, and the surrounding property serves as the servient estate. In the event of transference of ownership of either property, the easement will remain valid. The second type of easement, an easement in gross, only contains a servient estate. An example of this is a power company gaining permission to run power lines across a piece of property. Because there is no property gaining an advantage, there exists no dominant estate.
As far as creation of an easement, there exist several avenues to achieve validity. The easiest, and most common, form of creating a lien is known as express grant or reservation. In this scenario, one property owners expresses his desire for use of another piece of property. The owner of the servient estate would then expressly grant permission for use, creating an easement. An easement can be created in good faith, however, without express consent. This practice, known as implication, occurs when a property owner or party begins using a foreign piece of property and is not met with opposition from the owner of the property. Should the owner of the servient estate object to the use of his land, an easement isn't completely unattainable, though. In the event that usage of land occurs for an extended period of time, an easement has been legally created, regardless of the desires of the servient estate's owner. This practice is known as prescription, and usually applies to something similar to a bike trail through a backyard that has been in use for a number of years.
4. Profit A Prendre
Profit a prendre is a nonpossessory right to remove the soil and/or produce from a piece of property. A common example of profit a prendre is the mineral rights of a piece of land belonging to someone other than the owner of the land.
5. Encroachments
An encroachment is defined as an unauthorized invasion or intrusion of a fixture, building, or other improvement onto someone else's property. In practice, encroachments grant a property owner the right to remove an object deemed as an encroachment onto their property, unless an easement exists allowing the presence of said encroachment. A common encroachment is the overgrowth of vegetation across property lines. Encroachments are often touchy subjects amongst neighbors, and can spawn ugly disputes over who is in the right. For an example, check out this LA Times article on disputes over fences as encroachments.
6. Adverse Possessions
In the strange occurrence of an adverse possessions situation, an individual can legally obtain title to land they do not own. How is that possible? Well, in the event that an individual openly possesses a piece of property for an extended period of time, between seven and twenty years, they gain the right to acquire the title to said property. This would apply to a squatter on someone else's land, but the squatter must exert actual and exclusive, open and notorious, and hostile and continuous possession of the property over the time period to qualify as "openly" possessing it.
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