Published by Kartik Subramaniam
Broadly speaking, an encumbrance is some “burden on the title” to a piece of property. If you’re reading this article, you probably already have been exposed to the term “encumbrances” in Real Estate Principles but I wanted to write a quick article about it as a refresher.
I chuckle when I hear people say things like “I would never buy a home with an encumbrance!” because this is essentially an impossible request. All properties are going to be encumbered in some way whether either through zoning regulations, private restrictions like CC&Rs when buying a condo or even something as common as a mortgage.
Encumbrances are of two basic types. Some involve money and others do not involve money. In the sale of California real estate, sellers are required to disclose encumbrances on a property and generally a title insurance company is a backstop to ensure that buyers are made aware of any encumbrances on a property prior to the purchase.
An encumbrance may or may not affect the value of the property – it depends on the type of encumbrance. There are some encumbrances like a lis pendens (explained below) that may prevent the sale of the property altogether.
Mortgages and trust deeds are among the most common types of encumbrances out there. Any time a buyer of real estate gets a loan on a property the lender will place a deed of trust or a mortgage against it. I know we are accustomed to calling any home loan a “mortgage” but in California the instrument is actually a deed of trust.
These are very common encumbrances on a piece of real estate because most properties are not purchased cash.
If you’re interested in learning more about the differences between a mortgage and a trust deed I recoded a YouTube video about it here.
A private owner might restrict the use of his or her property in some way. These restrictions usually stay with the property upon transfer. For example, a member of a church may decide to donate some land to the church on the condition that it be used only for religious purposes.
Prior to the enactment of civil rights legislation, there may have been race or other (now illegal) conditions prohibiting the sale to members of a specific ethnic minority group or religion. Such deed restrictions are neither valid nor enforceable
Zoning is a public control on real estate. Every city and county in California is required to have a comprehensive, long-range plan for development within an area. This plan is known as the general plan. If you need a refresher on this, check out this link.
Even though most people do not think of zoning as an encumbrance, it is in fact an encumbrance. For example, a property that is zoned residential generally cannot be used for a commercial business - making it encumbered in some way.
A property could have voluntary or involuntary liens. A voluntary lien is one that is freely agreed to by the property owner. Reading that, you might wonder why anyone would voluntarily place a lien on their property but these liens are actually very common in the form of mortgages and trust deeds which I outlined below.
On the other hand, involuntary liens are those that get placed on a property by operation of law. Examples of involuntary liens include property tax liens, income tax liens, mechanic’s liens, and lis pendens. These liens are involuntary because the property owner does not need to specifically authorize the creation of the lien. The lien is created by law.
From your real estate crash course you might remember that a mechanic's lien is one that a party can place on your property if you did not pay for labor, services, material or equipment used upon a property.
Mechanics liens (like all liens) are another example of an encumbrance.
An easement is a type of encumbrance that gives others permission to use a portion of property - often for access. Imagine there are two houses, one in the front and one in the back. Let’s say the only way that the back house can get home is to cross over the front house. The right of way over the front house is known as an easement.
Another example of an easement is an easement in gross which mostly involves utility companies. The water utility, for example, typically has the right to lay underground water pipe through a subdivision and the electricity company will typically have the right to string wires over a subdivision.
An encroachment is a physical invasion of another’s property. Examples of encroachments include walls being built extending onto a neighbor’s property line, structures being built across boundaries or even airspace encroachments where branches of trees extend into an adjacent parcel, for example.
It may be challenging to sell a property that has an encroachment upon it.
A solid understanding of encumbrances will help you not only pass your real estate examination, but also be in a better position to help your clients.
If you need more help passing the real estate exam, call us at 888 768 5285 and we can help.
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