Concepts Definitions

Let’s break down the concepts:

• Easement: An easement is a legal right that grants a person or entity the right to use another person’s property, or a portion of that property, for a specific, limited purpose. For example, this could be the right to drive across a part of the land to reach another property (ingress and egress). The party benefiting from the easement is called the dominant tenement, and the property that is burdened by the easement is called the servient tenement. An easement does not transfer ownership of the land itself; the legal title remains with the property owner. Easements can be created in various ways, including by express grant, express reservation, implication, prescription, recorded plat maps, dedication, and condemnation.

• Encumbered: An encumbrance is defined as a non-possessory interest in real property, such as a mortgage, a lien, an easement, or a restrictive covenant that limits the title. It represents a claim or right in someone else’s property, which may be financial or non-financial, and can impact the owner’s title, equity, or ability to sell or refinance. Because an easement gives a third party rights over a property, it acts as a limitation on the property’s title, making the property encumbered. Title insurance policies typically cover publicly disclosed encumbrances like easements.

Let’s consider why the other options are less appropriate:

• A. Appurtenant thereto: An easement can be appurtenant, meaning it benefits an adjoining property (the dominant tenement) and runs with the land. However, “appurtenant thereto” describes the nature of the easement (that it is attached to or benefits another property) rather than describing the condition of the land itself as being burdened by a legal claim. The land is the servient tenement that has the appurtenant easement, making it encumbered.

• B. Encroached upon: An encroachment is an unlawful intrusion onto a neighbor’s property, such as building a fence or extending a structure beyond one’s property line. This is different from an easement, which is a legally granted or recognized right to use another’s property. While both involve another party’s presence or use on a property, an encroachment is unauthorized and often results from a mistake, while an easement is a recognized legal right.

• D. Restricted: While an easement certainly restricts the property owner’s use of their land, “encumbered” is a broader and more precise legal term that encompasses an easement as a specific type of limitation on title and use. “Restrictions” can also refer to private deed restrictions or covenants, conditions, and restrictions (CC&Rs), which are distinct from easements, although both can be encumbrances.

Pages: 1 2 3