English
Real Property Rights and Governmental Encumbrances
Encumbrances and governmental rights limit real property ownership.
Encumbrances: Non-possessory interests limiting property use or value, without necessarily preventing transfer.
- Financial Encumbrances (Liens or Security Interests): Creditor’s right to sell debtor’s property to settle debt.
- Lien: Creditor’s right to sell property for debt settlement.
- Foreclosure: Legal process of selling mortgaged property for debt settlement.
- Voluntary Lien: Created with debtor’s consent (e.g., mortgage).
- Involuntary Lien: Created by law (e.g., tax lien, construction lien).
- General Lien: Affects all of debtor’s real property.
- Specific Lien: Limited to a specific property (e.g., mortgage).
- Example: A mortgage is a voluntary, specific lien. Unpaid property taxes result in a governmental involuntary, specific lien.
- Non-Financial Encumbrances: Affect property usage.
- Easement: Non-exclusive right to use another’s property for a specific purpose.
- Servient Tenement: Property subject❓ to the easement.
- Dominant Tenement: Property benefiting from the easement.
- Easement Appurtenant: Benefits a specific property, transfers with ownership.
- Easement in Gross: Benefits a person or entity, not tied to a property (e.g., utility lines).
- Profit a Prendre: Right to take something from the property (e.g., crops, minerals).
- Emblement: Tenant’s right to harvest crops planted before property sale, limited to the first harvest after the sale.
- Private Restrictions: Restrictions on property use created in the deed (e.g., subdivision restrictions).
- Example: Granting a neighbor right of way creates an easement. Granting a mining company rights to extract minerals is profit a prendre.
- Easement: Non-exclusive right to use another’s property for a specific purpose.
Governmental Rights: Rights governments have on private property.
- Eminent Domain: Government’s right to seize private property for public use, with just compensation.
- Just Compensation: Fair market value at the time of seizure.
- Condemnation Lawsuit: Lawsuit to seize property if agreement isn’t reached.
- Example: Government taking land for a highway must provide just compensation.
- Taxation: Property is subject to taxes.
- General Property Taxes (Ad Valorem Taxes): Annual taxes based on property value. “Ad Valorem” means “according to value.”
- Special Assessments: levied❓ on specific properties to cover the cost of public improvements benefiting those properties.
- Example: Homeowners pay annual property taxes. A new sewer system results in special assessments.
- Police Power: Government’s power to enact laws for public health, safety, and welfare.
- Land Use Regulations: Community planning ordinances and zoning laws❓.
- Building Codes: Safety standards for construction.
- Subdivision Development Regulations: Regulate land division and development.
- Environmental Protection Legislation: Protects the environment.
- Example: Zoning laws restrict commercial businesses in residential areas. Building codes mandate earthquake resistance.
- Escheat: State’s right to take property of someone who dies without heirs.
- Example: If a person dies without relatives or a will, the property goes to the state.
Chapter Summary
Overview: This chapter clarifies the right❓s and restrictions affecting real property ownership, focusing on encumbrances and governmental rights that limit the absolute authority of the property owner.
Encumbrances:
- Definition: Non-possessory interests that reduce the property’s value or limit its use but do not prevent its transfer.
- Types:
- Financial Encumbrances (Liens): A creditor’s right to sell a debtor’s property and use the proceeds to repay the debt if the terms are not met.
- Voluntary Liens: Created with the debtor’s consent, such as Mortgages and Deeds of Trust.
- Involuntary Liens: Created by law, such as Tax Liens, Judgment Liens, and Construction Liens.
- General Liens: Affect all properties owned by the debtor.
- Specific Liens: Affect a specific property❓ or a defined group of properties.
- Non-Financial Encumbrances: Affect the use of the property.
- Easements: A non-exclusive right to use another person’s property for a specific purpose. The property subject to the easement is called the “Servient Tenement,” and the property benefiting from the easement is called the “Dominant Tenement.”
- Appurtenant Easements: Benefit a specific property and transfer with its ownership.
- Easements in Gross: Benefit individuals or organizations, such as a utility company’s right to install and maintain utility lines.
- Profit a Prendre: The right to take something from the property, such as crops or minerals.
- Emblement: A temporary right for a tenant to harvest a crop planted before the property is sold.
- Private Restrictions: Also known as Deed Restrictions or Covenants, Conditions, and Restrictions (CC&Rs). Created by the deed and impose restrictions on the use of the property, such as building sizes and styles, and are typically enforced by private landowners through homeowner associations.
- Easements: A non-exclusive right to use another person’s property for a specific purpose. The property subject to the easement is called the “Servient Tenement,” and the property benefiting from the easement is called the “Dominant Tenement.”
- Financial Encumbrances (Liens): A creditor’s right to sell a debtor’s property and use the proceeds to repay the debt if the terms are not met.
Governmental Restrictions on Property Rights:
- Even Fee Simple ownership is subject to the government’s legitimate authority.
- Governmental Powers:
- Eminent Domain: The government’s right to take private property for public use with fair compensation, done through a “Condemnation Lawsuit.”
- Taxation: Property ownership is subject to General Property Taxes and Special Assessments.
- General Property Taxes: Levied annually on all non-exempt properties and based on the property’s value (Ad Valorem Taxes).
- Special Assessments: Levied on specific properties to cover the cost of public improvements that benefit those properties.
- Police Power: The government’s right to issue and enforce regulations to protect public health, safety, and welfare, including Land Use Regulations, Zoning Laws, and Building Codes.
- Escheat: The state’s right to reclaim property when a person dies without a will or heirs.
