Restrictions on The Title To Your Home

Your real estate lawyer or title company will investigate the legal title of property you want to buy, and may find a variety of issues you'll need to understand.

Covenants and Conditions

Covenants and conditions are agreements, usually included in the deed to a property, restricting the manner in which the property can be used. For example, a deed for a residential property may contain a covenant that the owner won't permit "noxious uses" on the property, or any of a lengthy list of particular offenses such as stables, factories and so forth.

Developers may record a document called "covenants and conditions and restrictions" (CC&R's) to control the nature and character of a property development for the benefit of future owners. For example, a covenant or condition may require a property owner to maintain the property according to aesthetic guidelines, such as how high you can build fences or what colors you can paint your house.

Easements

An easement is a right to use some part of a property for a specific purpose.

An express easement may be contained in the deed to the property or in another document. Some examples include:

• A utility company can run power lines on a property
• Adjacent property owners may enter into an agreement to share a common driveway that extends over both properties.

An implied easement or prescriptive easement may arise when a use of property continues for a certain period of time. For example, if a neighbor has been crossing the corner of a property for years, the neighbor may have acquired a prescriptive easement to continue to cross the property in the same manner.

Liens

A lien is a charge on property to satisfy a debt or other obligation.

An owner may agree to place a lien on real property in order to obtain mortgage financing to purchase the property.

A lien on real property may also result from a debt of the property owner that is not directly connected to the ownership of the land. Examples include:

• Unpaid federal and state taxes, such as income tax, sales taxes, and the like, may become a lien on the taxpayer's property if the taxing authorities follow certain procedures.
• Depending on state law, unpaid child support may be a lien on real property.
• The court in a divorce case may award one spouse ownership of the marital home, but grant the other spouse a lien on the property to the extent of the spouse's interest in the property at the time of the divorce.

If a debtor owner fails to pay a debt, and the creditor goes to court and obtains a judgment, the law usually permits the creditor to file that judgment in the land records so that it becomes a lien on the debtor's real property. The creditor may then be paid by either:

• Foreclosing the lien, forcing a sale of the property to satisfy the debt, or
• Waiting until the debtor wishes to sell the property

If the debtor sells the property without satisfying the lien, the lien isn't discharged and it may still be satisfied by a sale of the property, even after it's been sold to a new owner.

In most transactions, a bank or other mortgage lender will not provide mortgage financing until all liens on the property have been removed.

A worker or business supplying building materials may have a mechanics' and materialmens' lien for the construction or improvement of real property, for services such as:

• Contracting
• Plumbing
• Painting

In some states, professionals such as architects, engineers, and surveyors may also be entitled to a lien for services rendered.

The laws governing the rights of contractors to place a lien on real property vary greatly from state to state, but they usually share some basic features:

• The contractor has the right to file a form (a lien claim or notice of lien) in the land records when payment is not made for materials or services provided for the improvement of real property. The claim becomes an encumbrance on the property.
• In some states, the contractor is required to file a notice of lien prior to commencing work on the property or supplying materials. Usually the time for filing a mechanics' or materialmens' lien is short (60 to 90 days).

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