Encumbrancing with Liens and Easements
July 11th, 2009
Categories:Home Ownership
What is an Encumbrance?
An Encumbrance is a claim, charge or liability that attaches to real estate. An encumbrance does not have possessor’s interest in real property. Instead it is a right or an interest held by someone other than the owner of the property.
There are two main types of encumbrances:
- Liens
- Encumbrances
Liens
A lien is a charge against the property that secures debt for an obligation owed by the owner. If the obligation is not repaid, the lien holder has the right to foreclose on the house and obtain the money owed to them.
Taxes, mortgages, judgments and mechanics liens all represent possible liens against an owner’s real estate.
Encumbrances
There are three main encumbrances
- Deed Restrictions
- Easements
- Encroachments
Deed Restrictions
Deed Restrictions are commonly referred to as covenants, conditions and restrictions (CC&R’s). These are private agreements that affect the use of land. Home owners associations are often responsible for ensuring home owners comply with the CC&R’s.
Easements
An easement is the right to use the land of another for a particular purpose. An appurtenant easement is annexed to the ownership of one parcel and allows the owner to use the neighbor’s land.
The owner of the land that is using the other land is known as the dominant tenement, and the individuals land who is being used is known as the servient tenement.
An easement in gross is an individual’s interest or right to use the land. For example a railroad runs through an individual’s land. The railroad company owns the easement in gross.
There are four ways to create and easement:
- Party wall easement
- an exterior wall that straddles the boundary line between two properties. - Easement by necessity
- an easement created out of necessity, such as a homeowner using another individual’s property to exit his property to access the street. - Easement by prescription
- When a claimant has made use of another’s land for a certain period of time.
- In Arizona 10 years is normally the amount of time the individual must be using the land before it can be granted to them by prescription. - Easement by condemnation
- the use of eminent domain to acquire land for a public purpose
Encroachments
Encroachments occur when all or part of a structure illegally extends beyond the land of its owner or beyond the legal building lines.
When a home owner’s land is being encroached upon, the home owner has the right to file suit against the person overstepping the boundary. However, if the homeowner does not take action, after a period of time the person encroaching on the land can obtain the land by prescription.
Contact Flinsk Real Estate with any questions, or further explanations.
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