When you're buying a home, you're buying more than bricks, mortar and wood. You're buying the legal title to the home and the land it sits on. A "title" gives you the right to hold, use and enjoy the property and the right to exclude others from holding, using and enjoying it. So, it's understandable for a buyer to think that he or she will be able to do anything he or she wants to do in and to the home, and whenever the mood strikes.
However, you might be surprised to find out that you don't have such freedom and that there are title restrictions on your home and property that limit how you can use the property and maybe even how you can make the property look.
You should research the legal title of property you want to buy, which should reveal most of these restrictions. They typically include:
Covenants & Conditions
It's critical that you find out and understand what title restrictions apply before you commit to buying a home or property.
Covenants & Conditions
Covenants and conditions are agreements, usually included in the deed to the property, restricting how the property can be used. For example, a deed for a residential property may contain a clause that the owner won't permit "noxious uses" on the property, such as operating a slaughterhouse, or any of a potentially lengthy list of things, such as stables, factories, and so forth.
Developers of new subdivisions often record a document called "covenants and conditions and restrictions" (CC&R's), controlling the nature and character of a property development for the benefit of future owners. For example, a CC & R may require an owner to maintain the property according to certain guidelines, such as how high you can build fences or what colors you can paint your house.
An easement is a right to use some part of someone else's land for a specific purpose. There are two main kinds:
- Appurtenant easement, where one parcel of land receives the benefit of the easement ("dominant estate") and another parcel carries the burden of the easement ("servient estate"). The easement is "attached to" the dominant estate, and the rights granted by this type of easement "passes with the land" when it is sold to someone else. An example is when property owner "A" gives property owner "B" the right to drive through A's property so that "B" can get to his land.
- Easement in gross, which is when there is only a servient estate, and the holder of the easement doesn't have to own adjacent property. An easement to run utility lines or gas pipes through your land is a good example. These easements are usually recorded in county property records.
In general, you can't interfere with someone's use of an easement, so in the above examples, you can't block owner "B's" access to his land, and you can't prevent the utility company from running new lines or repairing broken pipes located within the area covered by the easement, even if it means that your landscaping will be torn up.
A lien is a hold on property to satisfy a debt or other obligation. For example, the seller might have agreed to place a lien on the home in order to obtain financing to purchase the home. Usually, you can't sell a home unless the seller's mortgage has been paid off.
A lien on real property can 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 and sales taxes, can become a lien on the taxpayer's property if the taxing authorities follow certain procedures
- In some states, unpaid child support may be a lien on real property
- Also, unpaid homeowner's association fees can result in a lien on the property that usually must be paid before the property can be bought or sold
If an owner fails to pay a debt, and the creditor goes to court and obtains a judgment, the law usually permits the creditor to file a lien on the property. The creditor may then be paid by either:
- Foreclosing and forcing a sale of the property to satisfy the debt, or
- Waiting until the debtor sells the property. If the debtor sells the property without satisfying the lien, the lien can't be taken off the record. It may still be satisfied by a sale of the property, even after it's been sold to you.
When you improve the property, a worker or business supplying services or building materials for the home or property may have a mechanic's or materialman's lien to ensure payment for the project. Examples include repair services, or products and services provided for maintenance or remodeling of a home. In some states, professionals such as architects, engineers and surveyors may be entitled to put a lien on the property for their services.
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 lien claim or notice of lien when payment isn't made for materials or services provided for the improvement. The claim becomes an "encumbrance" or lien 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. Typically, the time for filing a mechanic's or materialman's lien is 60 to 90 days after work has been completed and not paid for
Generally, a bank or other mortgage lender will not give you a mortgage to buy the home until all of the liens have been paid.
Questions for Your Attorney
- If I find out after I bought a house that the seller had an unpaid lien and the creditor comes after me for payment, can I sue the seller for repayment?
- How do I get rid of an easement that allows a neighbor to cross through my land?
- Can a home owner sell more than one easement for the same thing, say, for example, to let multiple neighbors use a specified area of land so that they can all get to their individual properties?