Easements, Liens & Encroachments
~12 min read · Classify easements appurtenant vs in gross, license vs easement, and lien priority basics.
An encumbrance is any right someone else holds in your land — money claims (liens) or use claims (easements, restrictions, encroachments). The exam sorts easement types, how they're created and destroyed, and which liens outrank which.
Easements: appurtenant vs in gross
An easement appurtenant benefits a parcel: the dominant tenement enjoys the right (the driveway across the neighbor), the servient tenement bears it — and the easement runs with the land to every future owner of both. An easement in gross benefits a person or company with no dominant parcel — utility lines are the standard commercial example (transferable); personal easements in gross generally die with the holder. A license is mere revocable permission — no interest in land at all.
- Appurtenant: dominant + servient parcels, runs with the land
- In gross: benefits a party (utilities), no dominant estate
- License: revocable permission, not an encumbrance
Creating and ending easements
Creation: express grant or reservation (deed), implication (prior use + necessity at severance of a parcel), necessity (landlocked parcels), and prescription — open, notorious, hostile, continuous use for the statutory period (like adverse possession, minus exclusivity, and no tacking issues aside). Termination: merger (one party acquires both parcels), release (deed from dominant holder), abandonment (nonuse PLUS intent to abandon), expiration of stated term, or destruction of the servient structure.
- Express, implied, necessity, prescriptive
- Prescription = adverse-possession elements without exclusivity
- Merger, release, abandonment (intent required), expiration
Liens and priority
Liens are money encumbrances. Specific liens attach to one property: mortgages, property-tax and special-assessment liens, mechanic's liens (work/materials — often relating back to work commencement). General liens reach all the debtor's property: judgments, IRS liens, estate/inheritance taxes. Priority is first-recorded, first-paid — except property-tax and assessment liens jump to the front regardless of date. Encroachments (the fence two feet over the line) and deed restrictions round out the encumbrance family; a survey finds the first, the title search finds the second.
Worked example
A landlocked cabin's owner has crossed the neighboring ranch by the same dirt track since 1998 without permission. The ranch sells to a developer who blocks the track and then discovers: a recorded utility easement across the ranch, 2024 unpaid property taxes, a 2022 mortgage, and a 2023 judgment lien. Sort the use rights and the payoff order at foreclosure.
The track: decades of open, notorious, hostile, continuous use exceeds any statutory period — a prescriptive easement exists, and it binds the developer (easements run with the servient land; a sale never cuts them off). Even without prescription, a landlocked parcel severed from common ownership argues easement by necessity. The utility easement in gross likewise survives the sale. The money stack at foreclosure: property taxes first (super-priority regardless of recording date), then the 2022 mortgage, then the 2023 judgment lien — first in time among the recorded money liens after the tax jump. Use rights survive transfers; liens queue by date except taxes cutting the line.
Common exam pitfalls
Expecting a sale to wipe an easement.
Easements appurtenant and commercial easements in gross run with the land — buyers take subject to them.
Calling neighborly permission a prescriptive claim.
Permission defeats hostility — prescriptive rights grow only from unpermitted use for the statutory period.
Ranking liens purely by recording date.
Property-tax and assessment liens outrank everything regardless of date; the rest follow first-in-time.
Appurtenant rides the land, in gross rides the company, prescription rides the calendar — and the tax man rides in front.
Recap
- Easement appurtenant: dominant/servient parcels, runs with the land
- In gross: no dominant parcel; utilities transferable
- Creation: express, implied, necessity, prescriptive (ONCH use)
- Termination: merger, release, abandonment with intent, expiration
- Specific vs general liens; first-recorded priority
- Property-tax liens hold super-priority
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