Month: November 2019

Ok–So You Own The Property. But– Hey! There Are Others Using It! How Can That Be?

Ok–So You Own The Property. But– Hey! There Are Others Using It! How Can That Be?

You own the property but others may and do use it.  This use may be legal or illegal.  

How does this come about?  Access to your property may be by easements (generally legal), building restrictions, zoning (generally legal) and encroachment (may at times be illegal).

And who are these other people that can have access your property?  They may be people reading meters or the telephone company checking lines. 

How does this happen?  Again, by easements, zoning (and building restrictions) and encroachment.  A brief glimpse as to what this mean is summarized below.

Easements onto your property are the most common.

Basically, an easement is the right to use another’s land.  It is an interest in another’s land owned by another person consisting in the right to use or control the land, or an area above or below it, for a specific, limited purpose.  An easement is not a lien.  When there is an easement it is considered encumbered.

One kind of easement is an Easements that run with the land (appurtenant).  This means the easement belongs to or runs with the property and when sold the new owner has the same rights to the easement as the seller.

Generally an appurtenant easement is created for and benefits the owner of adjoining or attached land.  

Example:  A neighbor works or lives behind your property and uses your driveway.   The owner of the front parcel cannot block or hinder the right to the property of this neighbor.  This easement is created for and benefits the adjoining property (neighbor’s property).

Easements are created by grant (writing); implication by law; and long use (called prescription). 

  • Grant easements have to be notarized and recorded to be effective (considered as an easement).
  • Implication by law, ie., the right to use land for the extracting minerals, oil implies that you have the right of surface entry in order to extract the minerals.
  • Long use (gain by prescription) can be obtained after 5 years of uninterrupted use of another’s land; no confrontation or property tax payments required.  Long use necessitates the following:
  • Open and notorious use
    • Uninterrupted use for 5 years
    • Without permission of the owner (called hostile)
    • Under a claim of right.

2.  Building Restrictions and Zoning.

These easements are usually included in the deed at the time the property is subdivided, or may be created by a written contract.

Their main purpose is to keep use of the land uniform throughout certain tracts (or areas) of land.  Subdivisions and condominiums usually include deed restrictions as a method to promote the aesthetics and economics of the project.

These (private) deed restrictions and bylaws are usually recorded separately and are only referenced in the original grant deeds.

3.  Encroachment

Encroachment is the wrongful, unauthorized placement of improvements or permanent fixtures on property by an non-owner of the property.  If someone encroaches on your land, they are limiting you the use of your property.  When this violation is recognized the owner has up to three years to act to correct the encroachment. Items that generally fall under encroachments often are fences, walls or building that extend over recognized boundary lines.

Types of Real Estate Ownership and Methods of Transferring the Property

Types of Real Estate Ownership and Methods of Transferring the Property

Listed below are the types of ownership (estates) that one may have, the methods of holding title and methods of transferring the property.

Ownership is the interest, share, right or equity that has and varies say from the rights of a renter.  Ownership gives full maximum rights of a full owner.

Fee Simple.  Fee simple is the greatest interest one can hold in a property.  It is perptual, freely transferable and inheritable. 

Conditions can be placed on fee simple estates by the grantor.  For example a condition may be imposed on a property donated to the State on the condition that the State agrees to build a college on the site.  If the State disagrees, the transfer does not take place.  Technically this condition describes a condition precedent.  An action must be performed before title is transferred.

A condition subsequent gives the grantor (giver) the right to terminate if no action has occurred in a designated time frame.  For example if the condition stipulated that the State had to start the building of a college in five years and no action has been taken in the building, the property goes back to the grantor.

A Fee Simple Determinable is when it is determined that a certain act has to be carried out.  If the property owner donates the land to the State “so long as” the land is used for a college.  If the State uses the land for some other purpose it automatically goes back to the grantor.

Life Estate.  This represents an ownership that only exists for the life of a designated person(s).  The intent usually is to provide a lifetime residence for an individual.  For example I know of a husband and wife who granted a life estate to a very close friend.  Upon their death their daughter inherited the property but the parents in a will designated that their friend have the right to live in the residence until her death.  At the friends death it goes back to the daughter.

The person holding a life estate cannot grant more rights than they hold.  The life tenant:

  • has the right of physical possession of the property;
  • has the right to rents and profits, but this terminates when the life estate holder dies;
  • can usually lease, sell or finance the property, but not beyond the time frame of the life estate;
  • is obligated to keep the property in good repair.  The person is not required to make improvements;
  • may not damage or destroy any permanent part of the property to the detreiment of succeeding interests; and

is usually responsible for all annual costs and expenses.  In the example of the parents, their friend was responsible for all real estate property taxes, insurance and the normal expenses faced by a home owner (not the daughter).