Real Estate Encumbrances

An encumbrance is a claim or liability against real estate, held by someone other than the fee owner of the property that affects the title to the property, and therefore its value. It does not confer any possessory interest, and therefore is not an estate, and does not necessarily prevent the transfer of title. Encumbrances can include liens against the property, deed restrictions, easements, and encroachments.


Deed restrictions are private agreements that restrict the use of the real estate in some way, and are listed in the deed—hence the name. The seller may add a restriction to the title of the property. Often, developers restrict the parcels of property in a development to maintain a certain amount of uniformity.

Easements

An easement is the right of someone other than a fee owner to use a particular parcel of land for a particular purpose—most often it is the right to cross the property.

An appurtenant easement (aka appurtenance) is a right to use adjoining property that transfers with the land. The parcel of land that benefits from the easement is the dominant tenement, whereas the servient tenement is the parcel of land that provides the easement. The appurtenant easement always transfers with the land unless the owner of the dominant tenement releases it.


An easement in gross is an individual interest to use the land—it benefits a person or an organization, in contrast to an appurtenant easement, which benefits the land. Often, businesses, such as railways and phone companies, hold commercial easements in gross so that they can conduct business. Utility easements, which allow utilities to run electric wires or pipelines across properties, are also easements in gross.


Commercial easements in gross can be assigned or conveyed. Generally, a personal easement in gross is used to allow a neighbor to cross someone else’s land, but unlike an appurtenant easement, does not transfer with the property and ends when the owner of the easement dies.

The Creation of Easements

Easements are created by either express agreement or by implication. In many cases, an owner creates an easement for himself when selling a parcel of his land or gives an easement to a buyer of the property to pass over his land because of convenience or necessity.

One of the rights of owning land is to be able to enter or leave it, but some parcels of land are isolated from public thoroughfares by other private properties. In these cases, an appurtenant easement is created by a court order as an easement by necessity, because the dominant tenement owner has no other way of entering or leaving his property.

An easement by condemnation is created by eminent domain—owners of the servient tenement must, however, be compensated for providing the easement.

The Termination of Easements

An encroachment is an extension of some physical structure, such as a building, driveway, fence, or tree over the property lines from an adjoining property. Encroachments can affect the marketing of the title, and should be noted in a listing agreement or sales contract.

Encroachments can best be determined by a spot survey, which is a survey showing the locations, sizes, and shapes of the buildings on a lot. Visual inspection is not as accurate and should not be relied upon if there is a question of an encroachment.


The owner of the land subject to the encroachment can either sue for damages or have the structure extending over the property lines removed or trimmed back. However, the owner of the encroaching structure may have an easement by prescription if the time period of the encroachment exceeds the prescriptive time stipulated by state law for an easement by prescription.