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Definition
| is an interest in and right to real property that limits the legal owner’s freehold interest. In effect, an encumbrance is another’s right to use or take possession of a legal owner’s property, or to prevent the legal owner from enjoying the full bundle of rights in the estate. |
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| true or false: an encumbrance does not include the right of possession and is therefore a lesser interest than the owner's freehold interest |
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Definition
such as a utility easement, enables others to use the property, regardless of the owner’s desires.
common term is "right-of-way" |
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| A lien, such as a tax lien, can be placed on the property’s title, thereby restricting the owner’s ability to transfer clear title to another party. |
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| true or false: The receiver of the easement right is the benefited party; the giver of the easement right is the burdened party. |
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| allowing a use, such as a right-of-way |
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| prohibiting a use, such as an airspace easement that prohibits one property owner from obstructing another’s ocean view. |
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| what does appurtenant mean? |
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Definition
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Term
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Definition
| gives a property owner a right of usage to portions of an adjoining property owned by another party. The property enjoying the usage right is called the dominant tenement, or dominant estate. The property containing the physical easement itself is the servient tenement, since it must serve the easement use. |
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| Easement Appurtenant transferability |
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Definition
| Easement appurtenant rights and obligations automatically transfer with the property upon transfer of either the dominant or servient estate, whether mentioned in the deed or not. For example, John grants Mary the right to share his driveway at any time over a five-year period, and the grant is duly recorded. If Mary sells her property in 2 years, the easement right transfers to the buyer as part of the estate. |
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Definition
An easement by necessity is an easement appurtenant granted by a court of law to a property owner because of a circumstance of necessity, most commonly the need for access to a property.
Since property cannot be legally landlocked, or without legal access to a public thoroughfare, a court will grant an owner of a landlocked property an easement by necessity over an adjoining property that has access to a thoroughfare. |
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| easement by necessity is also called a |
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Definition
| easement by implied grant |
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Term
| easement for light and air |
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Definition
| For example, if an owner has a wonderful view of a beautiful local lake located on the other side of their neighbor’s property, the owner might try to get an easement for light and air over the neighbor’s property. If the easement is correctly created and recorded, neither the current owner nor any subsequent owners could build a structure in the airspace. |
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Definition
| is a common wall shared by two separate structures along a property boundary. |
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Definition
| is a personal right that one party grants to another to use the grantor’s real property. The right does not attach to the grantor’s estate. It involves only one property, and, consequently, does not benefit any property owned by the easement owner. There are no dominant or servient estates in an easement in gross. An easement in gross may be personal or commercial. |
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Term
| personal easement in gross |
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Definition
| A personal easement in gross is granted for the grantee’s lifetime. The right is irrevocable during this period but terminates on the grantee’s death. It may not be sold, assigned, transferred, or willed. |
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| commercial easement in gross |
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Definition
A commercial easement in gross is granted to a business entity rather than a private party. The duration of the commercial easement is not tied to anyone’s lifetime. The right may be assigned, transferred, or willed. This type of easement is usually owned by the government, a government agency, or a public utility.
A marina’s right-of-way to a boat ramp.
A utility company’s right-of-way across a lot owner’s property to install and maintain telephone lines. |
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Term
| true or false: The easement in gross is the most common type of easement. Almost all parcels of property are subject to one or more utility easements. |
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Definition
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Term
| Easement Creation: voluntary action |
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Definition
| A property owner may create a voluntary easement by express grant in a sale contract, or as a reserved right expressed in a deed. |
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| Easement Creation: necessity |
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Definition
| a court decree creates an easement by necessity to provide access to a landlocked property. |
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| Easement Creation: by prescription |
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Definition
If someone uses another’s property as an easement without permission for a statutory period of time and under certain conditions, a court order may give the user the easement by prescription, regardless of the owner’s desires.
For a prescriptive easement order to be granted, the following circumstances must be true:
Adverse and hostile use—the use has been occurring without permission or license.
Open and notorious use—the owner knows or is presumed to have known of the use.
Continuous use—the use has been generally uninterrupted over the statutory prescriptive period, which in Oklahoma is 15 years. |
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| Easement Creation: by Grant |
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Definition
Also known as easement by reservation, easement by grant is created with the express written agreement of the property owners.
In conveying land by deed, if the grantor wants to reserve certain easement rights, they can stipulate such in the deed itself.
For example, the grantor can convey fee interest in Lot 1 to the grantee, while reserving a nonexclusive easement for ingress and egress over the driveway located on Lot 1. |
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| Easement Creation: by implication |
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Definition
An implied easement can be created when a grantor conveys a portion of the real estate they own or when they divide a larger tract among separate grantees. In either case, a severance of parcels occurs, which is a necessary prerequisite to an implied easement.
For example, property owner Jess sells off the mineral rights to his property. The mining company has an easement by implication to go onto the property to mine the minerals—but mining is the only reason the company may enter the property. |
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| easement creation: by condemnation |
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Definition
| Government entities can create easements through the exercise of eminent domain, wherein they condemn a portion of a property and cause it to be sold “for the greater good.” A typical example is a town’s condemnation of private land to create a new municipal sewer system. |
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Term
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Definition
Express release of the right by the easement holder.
Merger, as when a dominant tenement acquires the servient property, or vice versa.
Purposeful abandonment by the dominant tenement.
Condemnation through eminent domain.
Change or cessation of the purpose for the easement.
Destruction of an easement structure, such as a party fence.
Non-use of an easement by prescription. |
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Term
| What are the two basic types of easements and what are their differences? |
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Definition
Easement appurtenant—attaches to the estate and transfers with it unless specifically stated otherwise in the transaction documents
Easement in gross—a personal right to use that does not attach to the grantor’s estate. |
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| What is a common example of an easement by necessity? |
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Definition
| The need for access to a property so that it is not landlocked |
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| How are easements created? |
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Definition
Voluntary action
Necessity
Prescriptive operation of law
Grant or reservation
Implication
Government power of eminent domain (condemnation) |
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Definition
is the unauthorized physical intrusion of one owner’s real property into that of another.
Examples are:
A tree limb extending into the neighbor’s property, violating their airspace.
A driveway extending beyond the lot line onto the neighbor’s land.
A fence built beyond the property line. |
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Term
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Definition
A license, much like a personal easement in gross, is a personal right that a property owner grants to another to use the property for a specific purpose. Licenses are not transferrable and do not attach to the land. They cease on the death of either party, or on the sale of the property.
Unlike a personal easement in gross, a license is revocable at any time. Licenses are often granted informally, as a verbal statement of permission.
A farmer granting a neighbor permission to cross their land to reach and fish in their pond is an example of a license. |
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Definition
is a limitation imposed on a buyer’s use of a property by stipulation in the deed of conveyance or recorded subdivision plat.
Deed restrictions are either covenants or conditions |
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Term
| deed restriction: conditions |
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Definition
| A condition can only be created within a transfer of ownership. If a condition is later violated, a suit can force the owner to forfeit ownership to the previous owner |
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Term
| deed restriction: covenant |
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Definition
| A covenant can be created by mutual agreement. If a covenant is breached, an injunction can force compliance or payment of compensatory damages. |
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Term
| How is a license different from a personal easement in gross? |
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Definition
| A license may be informal and is revocable at any time. Revocation of a personal easement in gross may require the death of the grantee or express release of the easement by the grantee. |
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| How are the two types of deed restriction created? |
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Definition
| A deed condition is created in the transfer documents. A deed covenant is created by mutual agreement of the owner and others. |
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Definition
| is a creditor’s claim against personal or real property as security for a debt of the property owner. If the owner defaults, the lien gives the creditor the right to force the sale of the property to satisfy the debt. |
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Term
| true or false: The creditor who places a lien on a property is called the lienor, and the debtor who owns the property is the lienee. |
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Definition
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Term
| how does a lien affect title? |
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Definition
| A lien is an encumbrance that restricts the free and clear ownership of the property. If a property is being sold, all liens should be paid in full before the property transfers ownership. |
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| A lien does not convey ownership, with one exception. |
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Definition
| A lienor generally has an equitable interest in the property, but not legal ownership. The exception is a mortgage lien on a property in a title-theory state. In these states, the mortgage transaction conveys legal title to the lender, who holds it until the mortgage obligations are satisfied. During the mortgage loan period, the borrower has equitable title to the property. |
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Definition
| A property owner may create a voluntary lien to borrow money or some other asset secured by a mortgage |
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Term
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Definition
lien is one that a legal process places against a property regardless of the owner’s desires.
If statutory law imposes an involuntary lien, it is a statutory lien. A real estate tax lien is a common example of this. If court action imposes an involuntary lien, it is an equitable lien. An example is a judgment lien placed on a property as security for a money judgment. |
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Definition
| is one placed against any and all real and personal property owned by a particular debtor. An example is an inheritance tax lien placed against all property owned by the heir. |
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Term
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Definition
| A specific lien attaches to a single item of real or personal property and does not affect any other property owned by the debtor. A conventional mortgage lien is an example of this, where the property is the only asset attached by the lien. |
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Term
| true or false: The category of superior, or senior, liens ranks above the category of inferior, or junior, liens, meaning that superior liens receive first payment from the proceeds of a foreclosure. |
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Definition
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| Superior liens in their rank order include: |
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Definition
Real estate tax liens.
Special assessment liens.
Federal estate tax liens.
State inheritance tax liens. |
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| Inferior liens in their rank order include: |
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Definition
Federal income tax liens.
State corporate income tax liens.
State intangible tax liens.
Judgment liens.
Mortgage liens.
Vendor’s liens.
Mechanic’s liens (priority by date work was performed). |
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Term
| Two factors primarily determine lien priority: |
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Definition
the lien’s categorization as superior or junior
the date of recordation of the lien |
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Term
| true or false: Among junior liens, date of recording determines priority. The rule is: the earlier the recording date of the lien, the higher its priority. |
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Definition
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Term
| writ of execution (in a judgement lien) |
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Definition
| The creditor may obtain a writ of execution to force the sale of attached property and collect the debt. After paying the debt from the sale proceeds, the debtor may obtain a satisfaction of judgment or release of judgment to clear the title records on other real property that remains unsold. |
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Definition
| A vendor’s lien, also called a seller’s lien, secures a purchase money mortgage, a seller’s loan to a buyer to finance the sale of a property. By statute, a seller has a vendor’s lien when the cash has not yet been received for the property. |
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| A vendee’s lien is may be placed by a buyer when the seller has not delivered the title after all other terms of the contract have been satisfied. |
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Definition
| If an employer owes back wages to an employee, a wage lien can be set against all real and personal property of the employer. If the money cannot be collected, then a lien may be filed as a permanent record of the debt owed to the claimant by the employer. |
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| Most liens do not convey ownership. What is the one exception to that rule? |
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Definition
| A mortgage lien conveys legal title to the lender. (in a title-theory state) |
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| What type of lien takes priority over all other liens? |
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Definition
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| What factors determine lien priority? |
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Definition
The lien’s categorization as superior or junior
The date the lien was recorded |
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| How can the priority order of a junior lien be changed? |
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Definition
| A lienor can change the priority of a junior lien by voluntarily agreeing to subordinate, or lower, the lien’s position in the hierarchy. |
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Term
| How can the priority order of a junior lien be changed? |
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Definition
| A lienor can change the priority of a junior lien by voluntarily agreeing to subordinate, or lower, the lien’s position in the hierarchy. |
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Term
| What is a judgment lien and how long is it effective? |
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Definition
| A judgment lien results from a lawsuit. It attaches to real and personal property as a result of a monetary judgment issued by a court in favor of a creditor. It attaches to the property for five years. |
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Term
| What is a mechanic’s lien? |
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Definition
| If a property owner fails to pay for work performed or materials supplied, a worker or supplier can file a mechanic's lien to force the sale of the property and collect the debt. |
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