Easements, Encroachments, and Liens

Encumbrance is the broad category

An encumbranceEncumbrance A claim, burden, restriction, or interest affecting property. See Chapter 5. Glossary is a claim, right, restriction, or liability affecting property or its titleTitle The legal ownership interest or rights in property, distinct from the deed documenting transfer. See Chapter 7. Glossary. Some encumbrances concern use; others secure debts. A lienLien A security claim or charge against property for an obligation. See Chapter 5. Glossary is an encumbrance, but an easementEasement A right to use another's land for a defined purpose without owning that land outright. See Chapter 5. Glossary is not necessarily a lien. A property can be transferable even though it is encumbered. S05

Appurtenant easements and easements in gross

An easementEasement A right to use another's land for a defined purpose without owning that land outright. See Chapter 5. Glossary is a nonpossessory right to use another's land for a limited purpose. An easement appurtenantAppurtenant Attached to or benefiting another interest, as an easement benefiting a dominant parcel. See Chapter 5. Glossary benefits a parcel, the dominant estateDominant estate The parcel benefiting from an appurtenant easement. See Chapter 5. Glossary, and burdens another parcel, the servient estateServient estate Land burdened by an easement. See Chapter 5. Glossary. The benefit commonly follows ownership of the dominant land rather than belonging only to the current owner.

An easement in grossEasement in gross An easement benefiting a person or entity rather than a dominant parcel. See Chapter 5. Glossary benefits a person or organization rather than a dominant parcel. A utility easement is a familiar example. Transferability depends on the type of easement, its terms, and law; not all easements in gross are nontransferable. S09

Example. Parcel A reaches a public road by a recorded driveway easement across Parcel B. A is dominant; B is servient. Selling A usually does not extinguish the appurtenant access right. The easement does not automatically permit A to use B's yard for parking or commercial deliveries beyond its scope.

Creation and termination

EasementsEasement A right to use another's land for a defined purpose without owning that land outright. See Chapter 5. Glossary may arise by express grant or reservation, implication, necessity, or prescriptionPrescription Acquisition of a use right through qualifying adverse use for the required period. See Chapter 5. Glossary. A prescriptive easement generally requires qualifying open, adverse, and continuous use for a statutory period. Permission ordinarily defeats the adverse-use element. The exact period and elements are state questions.

An easement by necessity generally involves a qualifying severanceSeverance Removing an attached item from realty, potentially converting it to personal property. See Chapter 2. Glossary of commonly owned land and a legally sufficient necessity, not merely a buyer who dislikes an inconvenient driveway. Easement scope and location can become legal disputes.

Termination may occur through a written release, expiration, merger of the relevant estates in the same ownership, or other recognized legal grounds. Nonuse alone does not necessarily establish abandonment. Selling the servient property ordinarily does not erase a valid easement. S09 S05

Licenses and encroachments

A licenseLicense In property use, permission distinct from an estate; in professional regulation, authorization to practice. See Chapter 5, Chapter 19. Glossary is permission to use property without granting an estate or ordinary easementEasement A right to use another's land for a defined purpose without owning that land outright. See Chapter 5. Glossary interest. It is generally revocable, but exceptions such as reliance-based protections may apply. Permission to park temporarily in a neighbor's driveway is a simple example.

An encroachmentEncroachment A physical intrusion onto another parcel or beyond a legal boundary. See Chapter 5. Glossary is a physical intrusion across a boundary, such as a fence, roof overhang, or driveway. It may create a dispute and can sometimes become relevant to prescriptive rights or adverse possessionAdverse possession Acquisition of ownership by possession satisfying all statutory requirements. See Chapter 7. Glossary. It is not automatically an easement. A survey helps establish location; a legal professional evaluates remedies and rights.

Classifying liens

A lienLien A security claim or charge against property for an obligation. See Chapter 5. Glossary secures an obligation with property. A voluntary lien results from the owner's agreement, such as a mortgage. An involuntary lien arises without that agreement, such as a qualifying tax or judgment lien.

A specific lien attaches to particular property. A general lien may reach multiple properties of the debtor within its legal scope. A real property tax lien is commonly specific and involuntary. A mortgage lien is commonly specific and voluntary. A judgment lien is commonly general and involuntary after required legal steps. Federal tax liens have their own attachment, notice, and priority rules. S05

A mechanic's lien secures certain unpaid labor or materials furnished to improve real property. Eligible claimants, notices, filing periods, and priority differ significantly by state. A contractor's invoice alone should not be assumed to create a perfected lien.

Priority: start with the rule, then look for exceptions

Earlier recorded interests often have priority, but “first recorded wins” is not a complete rule. Statutory tax priority, mechanics' lienMechanics' lien A statutory lien connected with qualifying labor or materials improving property. See Chapter 5. Glossary relation-back rules, purchase-money priority, recordingRecording Placing an instrument in the authorized public record system. See Chapter 7. Glossary acts, and agreed subordinationSubordination Agreement changing the relative priority of interests. See Chapter 5, Chapter 15. Glossary can change the result. A subordination agreement moves an interest behind another in priority.

Hypothetical distribution. Assume the problem expressly states that sale proceeds of $250,000 pay costs of $10,000, first-priority taxes of $8,000, a senior mortgage of $190,000, and then a junior mortgage of $60,000. Only $42,000 remains for the junior mortgage. Whether the unpaid $18,000 can become a personal deficiencyDeficiency Unpaid debt remaining after application of collateral proceeds, subject to recovery restrictions. See Chapter 7. Glossary is a separate legal question.

A foreclosureForeclosure Enforcement of a security interest through authorized sale or legal process. See Chapter 7. Glossary does not erase every conceivable interest. Properly joined junior interests may be cut off, while senior interests generally remain. State procedures, federal interests, and bankruptcy protections can alter the analysis. S05 S06

A lis pendensLis pendens Notice of pending litigation affecting a claimed property interest under applicable law. See Chapter 5. Glossary gives notice of litigation affecting real property; it is not simply another name for a mortgage lienLien A security claim or charge against property for an obligation. See Chapter 5. Glossary. A cloud on titleCloud on title An apparent defect or claim that can impair title. See Chapter 7. Glossary is an apparent defect or adverse claim. Both call for investigation rather than an agent's assurance that the problem is harmless.