Principles of California
Real Estate
Lesson 4:
Encumbrances
Encumbrances
Encumbrance: A nonpossessory interest in
real property, held by someone other than
the owner.
Encumbrances
Encumbrance: A nonpossessory interest in
real property, held by someone other than
the owner.
 Does not give ownership or right to
exclusive possession.
Financial vs. Non-financial
Encumbrances
Encumbrances are either:
 financial (liens)
or
Financial vs. Non-financial
Encumbrances
Encumbrances are either:
 financial (liens)
or
 non-financial (easements, private
restrictions, etc.)
Liens
Security interest
Security interest: A creditor’s interest in
property based on a lien, which makes the
property security (collateral) for the owner’s
debt.
Liens
Security interest
Security interest: A creditor’s interest in
property based on a lien, which makes the
property security (collateral) for the owner’s
debt.
 If property owner fails to repay debt,
secured creditor may foreclose.
Liens
Security interest
Security interest: A creditor’s interest in
property based on a lien, which makes the
property security (collateral) for the owner’s
debt.
 If property owner fails to repay debt,
secured creditor may foreclose.
 Property burdened by lien may be sold,
but new owner takes title subject to lien.
Liens
Voluntary vs. involuntary
Voluntary lien: Property owner voluntarily
grants lien to creditor.
Liens
Voluntary vs. involuntary
Voluntary lien: Property owner voluntarily
grants lien to creditor.
 Example: mortgage
Liens
Voluntary vs. involuntary
Voluntary lien: Property owner voluntarily
grants lien to creditor.
 Example: mortgage
Involuntary (statutory) lien: Lien given to
creditor by operation of law, without
property owner’s consent.
Liens
Voluntary vs. involuntary
Voluntary lien: Property owner voluntarily
grants lien to creditor.
 Example: mortgage
Involuntary (statutory) lien: Lien given to
creditor by operation of law, without
property owner’s consent.
 Example: tax lien
Liens
General vs. specific
General lien: Lien attaches to all of the
debtor’s real property.
 Example: judgment lien
Specific lien: Lien attaches only to a specific
piece of real property, not to everything
debtor owns.
 Example: mortgage
Liens
Types of liens
 Mortgages
 Deeds of trust
 Mechanic’s liens
 Judgment liens
 Attachment liens
 RE Property Tax liens
 Special assessment liens
Types of Liens
Mortgages
Mortgage: A lien created by contract
between a property owner and a lender.
Types of Liens
Mortgages
Mortgage: A lien created by contract
between a property owner and a lender.
Owner (Borrower) = Mortgagor
Lender = Mortgagee
Types of Liens
Mortgages
Mortgage: A lien created by contract
between a property owner and a lender.
Owner (Borrower) = Mortgagor
Lender = Mortgagee
 Borrower gives lender mortgage as security
for repayment of loan, with property serving
as collateral.
Types of Liens
Deeds of trust
Deed of trust serves same purpose as
mortgage but has different foreclosure
procedures.
Types of Liens
Deeds of trust
Deed of trust serves same purpose as
mortgage but has different foreclosure
procedures.
Borrower = Trustor or Grantor
Lender = Beneficiary
Neutral third party = Trustee
(Trustee handles foreclosure, if necessary.)
Types of Liens
Mechanic’s liens
Mechanic’s lien: Lien attaching to real
property on which construction work was
performed.
Types of Liens
Mechanic’s liens
Mechanic’s lien: Lien attaching to real
property on which construction work was
performed.
 Can be claimed by anyone providing
labor, materials, or services.
Types of Liens
Mechanic’s liens
Mechanic’s lien: Lien attaching to real
property on which construction work was
performed.
 Can be claimed by anyone providing
labor, materials, or services.
 If owner fails to pay as agreed, lienholder
can foreclose on property.
Types of Liens
Mechanic’s liens
Mechanic’s lien: Lien attaching to real
property on which construction work was
performed.
 Can be claimed by anyone providing
labor, materials, or services.
 If owner fails to pay as agreed, lienholder
can foreclose on property.
Also called a construction lien
or materialman’s lien.
Mechanic’s Liens
Preliminary notice
Must give owner preliminary notice of right
to claim lien within 20 days of starting to
provide services or materials.
Mechanic’s Liens
Preliminary notice
Must give owner preliminary notice of right
to claim lien within 20 days of starting to
provide services or materials.
 Notice unnecessary if lien claimant has
direct contract with owner (usually true for
general contractor).
Mechanic’s Liens
Deadlines
Once project is completed (or all work has
stopped for 30 days), owner has 10 days to
file a notice of completion.
Mechanic’s Liens
Deadlines
Once project is completed (or all work has
stopped for 30 days), owner has 10 days to
file a notice of completion.
Once notice of completion is filed, mechanic’s
lien must be filed for recording within 30 days.
 Exception: general contractors have 60
days.
Mechanic’s Liens
Deadlines
If no notice of completion is filed, mechanic’s
lien may be filed up to 90 days after work
has stopped.
Mechanic’s Liens
Deadlines
If no notice of completion is filed, mechanic’s
lien may be filed up to 90 days after work
has stopped.
If deadline is missed, lien cannot be filed.
 Creditor can still sue owner, but can’t
foreclose on property to collect debt.
Mechanic’s Liens
Deadlines
Once filed, mechanic’s lien will expire if
lienholder doesn’t start foreclosure
proceedings within 90 days.
Types of Liens
Judgment liens
Judgment lien: A lien that results from a
financial judgment against the losing party
in a lawsuit (the judgment debtor).
Types of Liens
Judgment liens
Judgment lien: A lien that results from a
financial judgment against the losing party
in a lawsuit (the judgment debtor).
 Attaches to judgment debtor’s property.
Types of Liens
Judgment liens
Judgment lien: A lien that results from a
financial judgment against the losing party
in a lawsuit (the judgment debtor).
 Attaches to judgment debtor’s property.
 If judgment is not paid, court may order
debtor’s property sold, to satisfy
judgment.
Types of Liens
Judgment liens
A judgment lien:
 attaches automatically to all the debtor’s
property in county where lawsuit took
place
Types of Liens
Judgment liens
A judgment lien:
 attaches automatically to all the debtor’s
property in county where lawsuit took
place
 can attach to new property acquired by
the debtor
Types of Liens
Judgment liens
A judgment lien:
 attaches automatically to all the debtor’s
property in county where lawsuit took
place
 can attach to new property acquired by
the debtor
 can attach to property in other counties
if the creditor files an abstract of
judgment in those counties
Types of Liens
Attachment liens
Attachment lien: A lien used to prevent a
defendant from selling property that could
be subject to a future judgment.
Types of Liens
Attachment liens
Attachment lien: A lien used to prevent a
defendant from selling property that could
be subject to a future judgment.
 Court issues writ of attachment.
Types of Liens
Attachment liens
Attachment lien: A lien used to prevent a
defendant from selling property that could
be subject to a future judgment.
 Court issues writ of attachment.
 Writ is recorded so that anyone buying
the property takes title subject to plaintiff’s
lien.
Types of Liens
Attachment liens
Lis pendens: Legal document filed by
plaintiff in lawsuit, notifying anyone who
purchases specified property about a
pending lawsuit that may affect title.
Types of Liens
Attachment liens
Lis pendens: Legal document filed by
plaintiff in lawsuit, notifying anyone who
purchases specified property about a
pending lawsuit that may affect title.
 Just provides notice; doesn’t create lien.
Types of Liens
Attachment liens
Lis pendens: Legal document filed by
plaintiff in lawsuit, notifying anyone who
purchases specified property about a
pending lawsuit that may affect title.
 Just provides notice; doesn’t create lien.
 If property is sold, new owner is bound by
any resulting judgment.
Types of Liens
Property tax liens
Property tax lien: The lien created by
general real estate taxes.
Types of Liens
Property tax liens
Property tax lien: The lien created by
general real estate taxes.
 Attaches only to the property being taxed.
Types of Liens
Property tax liens
Property tax lien: The lien created by
general real estate taxes.
 Attaches only to the property being taxed.
 Allows government to foreclose and
collect delinquent taxes from the
proceeds of the foreclosure sale.
Types of Liens
Special assessment liens
Special assessment lien: A lien based on
a special assessment levied to pay for
specific improvements such as street
paving or sewer lines.
Types of Liens
Special assessment liens
Special assessment lien: A lien based on
a special assessment levied to pay for
specific improvements such as street
paving or sewer lines.
 Attaches only to properties that are
subject to the special assessment
(because they will benefit from the
project).
Types of Liens
IRS liens
IRS lien: A general lien that attaches to all
property belonging to a taxpayer who has
failed to pay federal income taxes.
Summary
Basic definitions
 Encumbrance
 Mechanic’s lien
 Lien
 Judgment lien
 Mortgage
 Attachment lien
 Deed of trust
 Tax lien
Lien Priority
Lien priority: Determines the order in
which lienholders will be paid if one
lienholder forecloses on a property with
multiple liens.
Lien Priority
 Foreclosure sale proceeds are paid to
each lienholder in order of priority.
Lien Priority
 Foreclosure sale proceeds are paid to
each lienholder in order of priority.
 Any surplus goes to foreclosed property
owner.
Lien Priority
 Foreclosure sale proceeds are paid to
each lienholder in order of priority.
 Any surplus goes to foreclosed property
owner.
 If proceeds aren’t enough to pay off all
liens, lienholders with lowest priority are
not paid.
Lien Priority
Recording date
Recording date: The date a lien was filed for
recording in county’s public record.
Lien Priority
Recording date
Recording date: The date a lien was filed for
recording in county’s public record.
Determines lien priority except for:
Lien Priority
Recording date
Recording date: The date a lien was filed for
recording in county’s public record.
Determines lien priority except for:
 property tax and assessment liens
(always have higher priority)
Lien Priority
Recording date
Recording date: The date a lien was filed for
recording in county’s public record.
Determines lien priority except for:
 property tax and special assessment
liens (always have higher priority)
 mechanic’s liens (priority based on date
work began)
Liens
Homestead Law
 Homeowners have limited protection against
judgment lien foreclosure.
Liens
Homestead Law
 Homeowners have limited protection against
judgment lien foreclosure.
 Homestead law does not apply to:
Liens
Homestead Law
 Homeowners have limited protection against
judgment lien foreclosure.
 Homestead law does not apply to:
 voluntary liens (mortgages, deeds of trust)
Liens
Homestead Law
 Homeowners have limited protection against
judgment lien foreclosure.
 Homestead law does not apply to:
 voluntary liens (mortgages, deeds of trust)
 mechanic’s liens
Liens
Homestead Law
 Homeowners have limited protection against
judgment lien foreclosure.
 Homestead law does not apply to:
 voluntary liens (mortgages, deeds of trust)
 mechanic’s liens
 liens resulting from failure to pay child
support or spousal maintenance
Liens
Homestead Law
Homestead: Dwelling occupied by the
owner, plus land and any attached
buildings.
Liens
Homestead Law
Homestead: Dwelling occupied by the
owner, plus land and any attached
buildings.
 Owner may claim homestead protection
after foreclosure proceedings have
started, or by filing a declaration with the
county recorder.
Liens
Homestead Law
 A person can have only one homestead at a time.
Liens
Homestead Law
 A person can have only one homestead at a time.
 Homestead protection terminates when:
 owner files declaration of homestead on
different property
Liens
Homestead Law
 A person can have only one homestead at a time.
 Homestead protection terminates when:
 owner files declaration of homestead on
different property
 original property is sold
Liens
Homestead Law
 A person can have only one homestead at a time.
 Homestead protection terminates when:
 owner files declaration of homestead on
different property
 original property is sold
 declaration of abandonment is filed
Liens
Homestead Law
 A person can have only one homestead at a time.
 Homestead protection terminates when:
 owner files declaration of homestead on
different property
 original property is sold
 declaration of abandonment is filed
 If the homestead owner dies, protection continues
for family members still living on the property.
Homestead Law
Exemption
Homestead makes part of homeowner’s
equity exempt from claims.
Homestead Law
Exemption
Homestead makes part of homeowner’s
equity exempt from claims.
 Judgment creditor can’t foreclose
unless property’s net value exceeds
the exemption.
Homestead Law
Exemption
Homestead makes part of homeowner’s
equity exempt from claims.
 Judgment creditor can’t foreclose
unless property’s net value exceeds
the exemption.
Net value = Market value minus amount of
higher-priority liens
Homestead Law
Exemption
Exemption amounts:
 $50,000 standard exemption
Homestead Law
Exemption
Exemption amounts:
 $50,000 standard exemption
 $75,000 if debtor is part of a family unit
Homestead Law
Exemption
Exemption amounts:
 $50,000 standard exemption
 $75,000 if debtor is part of a family unit
 $150,000 if debtor is:
1) over 65,
2) over 55 and low income,
3) married and low income, or
4) unable to work because of a disability
Homestead Law
Sale of home
 Homestead protection also covers sale
proceeds.
Homestead Law
Sale of home
 Homestead protection also covers sale
proceeds.
 Homestead owner has a six-month grace
period to use the money to buy a new
home.
Summary
Lien Priority and Foreclosure
 Lien priority
 Voluntary liens
 Tax liens
 Construction liens
 Surplus
 Homestead exemption
Encumbrances
Non-financial encumbrances
While liens usually affect only owner’s title
(not use of property), non-financial
encumbrances commonly affect both title
and use.
Encumbrances
Non-financial encumbrances
While liens usually affect only owner’s title
(not use of property), non-financial
encumbrances commonly affect both title
and use.
Non-financial encumbrances include:
 easements
 profits
 private restrictions
Non-financial Encumbrances
Easements
Easement: A right to use someone else’s
land for a particular purpose.
Non-financial Encumbrances
Easements
Easement: A right to use someone else’s
land for a particular purpose.
Easement holder may use property in
some specific, limited way, but may not
take possession of the property.
Easements
Types of easements
Two basic types of easements:
 easements appurtenant
 easements in gross
Types of Easements
Easements appurtenant
Easement appurtenant: Burdens one piece
of land (servient tenement) for benefit of
another piece of land (dominant
tenement).
Types of Easements
Easements appurtenant
Easement appurtenant: Burdens one piece
of land (servient tenement) for benefit of
another piece of land (dominant
tenement).
 Owner of dominant tenement is
dominant tenant.
Types of Easements
Easements appurtenant
Easement appurtenant: Burdens one piece
of land (servient tenement) for benefit of
another piece of land (dominant
tenement).
 Owner of dominant tenement is
dominant tenant.
 Owner of servient tenement is
servient tenant.
Types of Easements
Easements appurtenant
Easement appurtenant runs with the land.
 It continues to exist even if either the
dominant or the servient tenement is sold.
Types of Easements
Easements appurtenant
Easement appurtenant runs with the land.
 It continues to exist even if either the
dominant or the servient tenement is sold.
 The benefit and the burden are automatically
passed on to all subsequent owners.
Types of Easements
Easements in gross
Easement in gross: Benefits particular
person rather than parcel of land.
 No dominant tenement, only servient
tenement (parcel burdened by
easement).
Types of Easements
Easements in gross
Easement in gross: Benefits particular
person rather than parcel of land.
 No dominant tenement, only servient
tenement (parcel burdened by
easement).
 Benefit is considered a personal right,
cannot be assigned to someone else.
Types of Easements
Easements in gross
Easement in gross: Benefits particular
person rather than parcel of land.
 No dominant tenement, only servient
tenement (parcel burdened by
easement).
 Benefit is considered a personal right,
cannot be assigned to someone else.
 Burden of easement in gross still runs
with the land.
Easements in Gross
Commercial easements
 Commercial easement: Easement in gross
held by a company for business purposes.
Easements in Gross
Commercial easements
 Commercial easement: Easement in gross
held by a company for business purposes.
 Exception to rule: Commercial easement in
gross can be assigned from one entity to
another.
Easements in Gross
Commercial easements
 Commercial easement: Easement in gross
held by a company for business purposes.
 Exception to rule: Commercial easement in
gross can be assigned from one entity to
another.
Example: Easement to install and
maintain utility lines.
Summary
Easements
 Easement
 Easement appurtenant
 Running with the land
 Easement in gross
 Commercial easement in gross
Easements
Creating easements
Easements are created by:
 express grant
 express reservation
 implication
 prescription
 reference to a recorded plat
 dedication
 condemnation
Creating Easements
Express grant
Property owner deliberately grants
someone else an easement on her property.
Creating Easements
Express grant
Property owner deliberately grants
someone else an easement on her property.
 May be purchased by the person needing
the easement.
Creating Easements
Express grant
Property owner deliberately grants
someone else an easement on her property.
 May be purchased by the person needing
the easement.
 May be created when one part of a larger
property is sold.
Creating Easements
Express grant
 Grant of easement must be in writing and
signed by grantor (required by statute of
frauds).
Creating Easements
Express grant
 Grant of easement must be in writing and
signed by grantor (required by statute of
frauds).
 Document creating easement should
always be recorded to provide public notice.
Creating Easements
Express reservation
 Owner selling part of her property may
reserve easement against parcel she’s
selling, to benefit parcel she’s keeping.
Creating Easements
Express reservation
 Owner selling part of her property may
reserve easement against parcel she’s
selling, to benefit parcel she’s keeping.
 Easement by express reservation must be
in writing, and the document should be
recorded.
Creating Easements
Implication
 Called easement by implication, implied
easement, or easement by necessity.
Creating Easements
Implication
 Called easement by implication, implied
easement, or easement by necessity.
 Example: Part of a larger parcel is sold, but
grantor neglects to create easement in
deed, leaving one of the parcels without an
access route. An easement would be
created by implication.
Creating Easements
Implication
Requirements for an easement by implication:
 must be reasonably necessary for
enjoyment of dominant tenement
Creating Easements
Implication
Requirements for an easement by implication:
 must be reasonably necessary for
enjoyment of dominant tenement
 apparent prior use of the easement
Creating Easements
Prescription
Easement by prescription: An easement
established by using someone else’s
property without the owner’s permission.
Also called a prescriptive easement.
Creating Easements
Prescription
Requirements:
 Open and notorious (conspicuous) use
Creating Easements
Prescription
Requirements:
 Open and notorious (conspicuous) use
 Hostile use
Creating Easements
Prescription
Requirements:
 Open and notorious (conspicuous) use
 Hostile use
 Claim of right or color of title
Creating Easements
Prescription
Requirements:
 Open and notorious (conspicuous) use
 Hostile use
 Claim of right or color of title
 Continuous and uninterrupted for 5 years
Creating Easements
Prescription
Requirements:
 Open and notorious (conspicuous) use
 Hostile use
 Claim of right or color of title
 Continuous and uninterrupted for 5 years
 If property taxes are assessed separately on
easement, easement claimant must pay them
during five-year period.
Creating Easements
Reference to a recorded plat
When land is subdivided, purchasers
acquire easements to use all roads and
alleys shown in recorded plat map.
Creating Easements
Dedication
Dedication: Private property owner transfers
interest in property to government.
Creating Easements
Dedication
Dedication: Private property owner transfers
interest in property to government.
Example: Philanthropist dedicates his land
to city for a park, or dedicates an easement
across his land for access to the park.
Creating Easements
Dedication
 Dedication may be:
 voluntary (easement should be put into
writing and recorded), or
Creating Easements
Dedication
 Dedication may be:
 voluntary (easement should be put into
writing and recorded), or
 involuntary (by implication)
Creating Easements
Dedication
 Dedication may be:
 voluntary (easement should be put into
writing and recorded), or
 involuntary (by implication)
 If public uses private property over a
long period without owner’s permission,
easement may be created by implied
dedication.
Creating Easements
Condemnation
Condemnation: Legal process used to force
private owner to sell land or an easement to
the government.
Creating Easements
Condemnation
Condemnation: Legal process used to force
private owner to sell land or an easement to
the government.
 Property or easement must be used for a
public purpose.
Creating Easements
Condemnation
Condemnation: Legal process used to force
private owner to sell land or an easement to
the government.
 Property or easement must be used for a
public purpose.
 Property owner must be compensated.
Summary
Creating Easements
 Express grant
 Express reservation
 Implication
 Prescription
 Reference to recorded plat
 Dedication
 Condemnation
Terminating Easements
Easements can be terminated by:
 release
 merger
 failure of purpose
 abandonment
 prescription
Terminating Easements
Release
Release: When someone who has a
specified interest in a property gives it up
to someone else.
Terminating Easements
Release
Release: When someone who has a
specified interest in a property gives it up
to someone else.
 Easement is terminated if dominant
tenant releases servient tenant from it
in writing.
Terminating Easements
Release
Release: When someone who has a
specified interest in a property gives it up
to someone else.
 Easement is terminated if dominant
tenant releases servient tenant from it
in writing.
 Dominant tenant executes and records
quitclaim deed in favor of servient tenant.
Terminating Easements
Merger
Merger: When two adjacent properties
come under the same ownership.
Terminating Easements
Merger
Merger: When two adjacent properties
come under the same ownership.
 If the same party becomes owner of both
the dominant and the servient property,
easement terminates by merger.
Terminating Easements
Merger
Merger: When two adjacent properties
come under the same ownership.
 If the same party becomes owner of both
the dominant and the servient property,
easement terminates by merger.
 You can’t have an easement against your
own property.
Terminating Easements
Failure of purpose
Easement is a right to use another’s
property for a particular purpose, and once
that purpose no longer exists, easement is
terminated.
Terminating Easements
Abandonment
Abandonment: Easement holder (dominant
tenant) does something indicating intent to
stop using easement forever.
Terminating Easements
Abandonment
Abandonment: Easement holder (dominant
tenant) does something indicating intent to
stop using easement forever.
 General rule: Non-use is not sufficient to
indicate abandonment.
Terminating Easements
Abandonment
Abandonment: Easement holder (dominant
tenant) does something indicating intent to
stop using easement forever.
 General rule: Non-use is not sufficient to
indicate abandonment.
 Exception: Servient tenant can sue to
have a prescriptive easement terminated
after 5 years of non-use.
Terminating Easements
Prescription
Easement is terminated by prescription if
servient tenant takes action to prevent
dominant tenant from using easement, and
is successful for 5 years.
Summary
Terminating Easements
 Release
 Merger
 Failure of purpose
 Abandonment
 Prescription
Non-financial Encumbrances
Profits
Profit: The right to take something from land
belonging to someone else.
Non-financial Encumbrances
Profits
Profit: The right to take something from land
belonging to someone else.
 Must be created in writing or by
prescription.
Non-financial Encumbrances
Related concepts
 Licenses
 Encroachments
 Nuisances
Non-financial Encumbrances
Related concepts
 Licenses
 Encroachments
 Nuisances
 These are not classified as encumbrances.
 They affect someone else’s property, but
aren’t considered interests in real property.
Related Concepts
Licenses
License: Right to enter and use land
belonging to another person.
Related Concepts
Licenses
License: Right to enter and use land
belonging to another person.
 Does not need to be in writing
Related Concepts
Licenses
License: Right to enter and use land
belonging to another person.
 Does not need to be in writing
 Revocable
Related Concepts
Licenses
License: Right to enter and use land
belonging to another person.
 Does not need to be in writing
 Revocable
 Does not create a property interest
Related Concepts
Licenses
License: Right to enter and use land
belonging to another person.
 Does not need to be in writing
 Revocable
 Does not create a property interest
 Not assignable
Related Concepts
Licenses
License: Right to enter and use land
belonging to another person.
 Does not need to be in writing
 Revocable
 Does not create a property interest
 Not assignable
 Does not run with the land
Related Concepts
Encroachments
Encroachment: Occurs when a physical
object from one property intrudes onto
neighboring property.
Related Concepts
Encroachments
Encroachment: Occurs when a physical
object from one property intrudes onto
neighboring property.
 Most encroachments are unintentional.
Related Concepts
Encroachments
Landowner who believes her property is
being encroached upon can sue neighbor.
 Called an ejectment action.
Related Concepts
Encroachments
Landowner who believes her property is
being encroached upon can sue neighbor.
 Called an ejectment action.
 Court may order defendant to remove
encroachment or pay damages.
Related Concepts
Encroachments
Landowner who believes her property is
being encroached upon can sue neighbor.
 Called an ejectment action.
 Court may order defendant to remove
encroachment or pay damages.
 Statute of limitations: 3 years.
Related Concepts
Nuisances
Nuisance: Activity on or condition of
property that interferes with neighboring
owner’s use of her property.
Related Concepts
Nuisances
Nuisance: Activity on or condition of
property that interferes with neighboring
owner’s use of her property.
 Private nuisance: Affects a few people,
like smell of neighbor’s pet pigs.
Related Concepts
Nuisances
Nuisance: Activity on or condition of
property that interferes with neighboring
owner’s use of her property.
 Private nuisance: Affects a few people,
like smell of neighbor’s pet pigs.
 Public nuisance: Affects many
landowners, like pollution from nearby
factory.
Related Concepts
Nuisances
Property owner affected by a private or
public nuisance can sue for:
 an injunction to stop the nuisance
Related Concepts
Nuisances
Property owner affected by a private or
public nuisance can sue for:
 an injunction to stop the nuisance
 compensatory damages
Related Concepts
Nuisances
Attractive nuisance doctrine: If property has
feature that is dangerous and attractive to
children, owner will be liable for any harm
resulting to trespassing children.
Related Concepts
Nuisances
Attractive nuisance doctrine: If property has
feature that is dangerous and attractive to
children, owner will be liable for any harm
resulting to trespassing children.
Example: an unfenced swimming pool.
Summary
Profits, Licenses, and Encroachments
 Profit
 License
 Encroachment
 Nuisance
Non-financial Encumbrances
Private restrictions
Private restrictions restrict how an owner
may use her own property.
Non-financial Encumbrances
Private restrictions
Private restrictions restrict how an owner
may use her own property.
Commonly created when transferring title,
to restrict all subsequent owners.
Non-financial Encumbrances
Private restrictions
Private restrictions restrict how an owner
may use her own property.
Commonly created when transferring title,
to restrict all subsequent owners.
 New restrictions may be stated in deed or
recorded at county recorder’s office
Non-financial Encumbrances
Private restrictions
Private restrictions restrict how an owner
may use her own property.
Commonly created when transferring title,
to restrict all subsequent owners.
 New restrictions may be stated in deed or
recorded at county recorder’s office
Private restrictions often called deed
restrictions or restrictive covenants.
Non-financial Encumbrances
Private restrictions
 Private restrictions may also be imposed
when there’s no change of ownership.
Non-financial Encumbrances
Private restrictions
 Private restrictions may also be imposed
when there’s no change of ownership.
 Sometimes owner will impose restriction
on own property in return for payment.
Non-financial Encumbrances
Private restrictions
 Private restrictions may also be imposed
when there’s no change of ownership.
 Sometimes owner will impose restriction
on own property in return for payment.
 If put into writing and recorded, private
restrictions run with land, just like
easements.
Private Restrictions
CC&Rs
 Stands for covenants, conditions, and
restrictions.
Private Restrictions
CC&Rs
 Stands for covenants, conditions, and
restrictions.
 Usually imposed by original developer of
residential subdivision.
Private Restrictions
CC&Rs
 Stands for covenants, conditions, and
restrictions.
 Usually imposed by original developer of
residential subdivision.
 Recorded, and a reference included in first
deed for each lot in subdivision.
Private Restrictions
CC&Rs
 Stands for covenants, conditions, and
restrictions.
 Usually imposed by original developer of
residential subdivision.
 Recorded, and a reference included in first
deed for each lot in subdivision.
 Provides constructive notice to subsequent
owners of the lot.
Private Restrictions
CC&Rs
 CC&Rs allow homeowners to prevent
neighbors from doing things that will have a
negative effect on property values.
Private Restrictions
CC&Rs
 CC&Rs allow homeowners to prevent
neighbors from doing things that will have a
negative effect on property values.
 If one owner violates CC&Rs, other owners
can file a lawsuit against the violator.
Private Restrictions
In conflict with zoning
 Private restrictions may be stricter than
public land use controls, such as zoning
laws.
Private Restrictions
In conflict with zoning
 Private restrictions may be stricter than
public land use controls, such as zoning
laws.
 If two restrictions (one public and one
private) both address same issue, the more
restrictive one usually applies.
Private Restrictions
Illegal or unconstitutional
 Private restrictions that violate law or
constitutional provisions are not
enforceable.
Private Restrictions
Illegal or unconstitutional
 Private restrictions that violate law or
constitutional provisions are not
enforceable.
 An unenforceable restriction in a deed
does not make the deed void. Only the
restriction is void.
Private Restrictions
Illegal or unconstitutional
 Private restrictions that violate law or
constitutional provisions are not
enforceable.
 An unenforceable restriction in a deed
does not make the deed void. Only the
restriction is void.
 Any restriction on property owner putting up
“For Sale” signs is typically void.
Private Restrictions
Covenant vs. condition
Covenant: Legally enforceable promise to
do or not do something.
Private Restrictions
Covenant vs. condition
Covenant: Legally enforceable promise to
do or not do something.
 Violation can result in injunction or
damages.
Private Restrictions
Covenant vs. condition
Covenant: Legally enforceable promise to
do or not do something.
 Violation can result in injunction or
damages.
Condition: Ownership of property depends
on compliance with restriction.
Private Restrictions
Covenant vs. condition
Covenant: Legally enforceable promise to
do or not do something.
 Violation can result in injunction or
damages.
Condition: Ownership of property depends
on compliance with restriction.
 Violator may actually forfeit title to
property. Conditions are rare today
because this result is so harsh.
Private Restrictions
Enforcement
Restriction may not be enforceable if:
 owners in subdivision failed to enforce it
against other violators
Private Restrictions
Enforcement
Restriction may not be enforceable if:
 owners in subdivision failed to enforce it
against other violators
 character of neighborhood has changed
drastically
Private Restrictions
Enforcement
Restriction may not be enforceable if:
 owners in subdivision failed to enforce it
against other violators
 character of neighborhood has changed
drastically
 property owner suing to enforce restriction
is also in violation
Summary
Private Restrictions
 Private restrictions
 CC&Rs
 Covenants
 Conditions