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Chapter Summary

1. A federal, state, or local government has the power to restrict or take private property for the purpose of promoting the health and welfare of the general public. This government power is generally divided into areas such as: zoning regulations, building codes, subdivision regulations, environmental protection laws, power of eminent domain, and taxation.

2. Zoning is the legitimate police power of the government to regulate the use of real property. Zoning consists of (1) dividing the city or county into districts; (2) prescribing within each district the, types of structures and architectural designs for buildings that may be located there; and (3) prescribing the use for the buildings within each district.

3. Building codes regulate methods and materials to be used in construction of improvements. Most cities and counties do not permit a building to be constructed and occupied without a permit and a final inspection by the building department.

4. Environmental protection laws involve a wide body of both federal and state law designed to protect the quality of our earth, water and air. A property owner may be responsible for cleanup of hazardous waste found on his or her property. Generally a buyer or lender at the time of acquiring or making of a loan on property will have the property investigated for the likelihood of contamination. Inquiries are generally done by hiring an environmental engineer to prepare a review of the property for possible contamination. These reviews are generally referred to as a Phase I environmental examination. In some cases a Phase II environmental examination is done, which includes the testing of soil and water for evidence of contamination.

5. Federal, state and local governments have a right, known as eminent domain, to take private property for public use. A property owner is provided by law with a number of procedural safeguards that govern the exercise of the power of eminent domain. The property owner is entitled to notice and a hearing before his or her property can be taken. The property owner is entitled to be paid the fair market value of the property taken.

6. Government bodies have the right to tax real property located within their jurisdictional boundaries. It is not unusual for real property to be taxed at both the city and the county levels. Real property taxes are called ad valorem taxes. This definition comes from the fact that the taxes are measured on the value of the real property being taxed.

7. An encumbrance is a claim, charge, or liability on property, such as a lien or mortgage, that lowers the property’s value. Encumbrances consist of (a) judgment liens, (b) mechanic’s and materialmens’ liens, (c) mortgages and trust deeds, (d) easements, and (f) restrictive covenants.

8. A judgment lien is a money debt resulting from a lawsuit. Judgments are liens on real property owned by the judgment debtor. The property subject to the lien can be sold and the proceeds from the sale used to pay the lien.

9. A mechanic’s or materialmen’s lien is imposed by law on real property to secure payment for work performed or materials furnished for the construction, repair, or alteration of improvements on the real property.

10. Restrictive covenants are private restrictions that restrict the use of real property. Restrictive covenants may be in the form of restrictions or covenants found in deeds of conveyance to the real property or in more formal restrictions that are recorded against the real property. It is not unusual for real properties that have been subdivided into a single family home subdivision to have restrictions regarding the use of the property by future owners.

11. An easement is a right to use real property owned by another for a specific purpose. It is considered an encumbrance on the real property on which the easement is located. Common examples of easements are utility easements and access easements. Utility easements are rights given to utility companies such as gas, electric, and telephone companies to permit them to install transmission lines over real property. Access easements give a party the right to travel over and across real property to a public street.

12. An appurtenant easement is an easement created to benefit a particular tract of land. The land benefited by an appurtenant easement is known as the dominant tenement and the land over which the easement is located is known as the servient tenement. Appurtenant easements are regarded as being so closely connected to the dominant tenement that with the sale of the dominant tenement the easement passes automatically to the owner of the dominant tenement.

13. An easement may be created by (a) express grant, (b) implication, (c) prescription, or (d) necessity.

14. An easement can be created by an express grant. The grant may be by a separate document or by a reservation of easement contained in a deed. Most express easements are in writing and describe the use of the easement and the real property on or over which the easement is located.

15. An easement may be created by implication. An implied easement can only be made in connection with the transfer of the real property being served by the easement. Implied easements are based on a theory that when real property is transferred, the transfer conveys whatever is necessary for the beneficial use and enjoyment of the real property, by the grantee or retains whatever is necessary for the beneficial use and enjoyment of real property by the grantor.

16. An easement may be acquired by prescription. Prescriptive easements are created when a person uses property without the permission of the owner for a period of time. It varies from state to state, but periods of ten to twenty years are generally required.

17. Many states give a landowner who does not have access to a public road or street the right to apply for the grant of a private way or an easement over adjacent lands to gain access. This is an easement by necessity.

18. An easement may be terminated by (a) expiration of express term, (b) abandonment, (c) merger, (d) foreclosure of prior servient liens, or (e) express release or termination.

19. A license is authority or permission to do a particular act or series of acts on another person’s land. A license generally can be terminated at any time.

20. A legal assistant will encounter easements in almost all urban real property transactions and many rural transactions. It is not uncommon for legal assistants to review easements and advise clients as to the restrictions and benefits of the easement. Legal assistants may also prepare easements.

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