Items that affect physical use for San Diego, Ca real estate

Items that affect physical use are non-money encumbrances that affect the physical use of property. They include: easements, zoning and encroachments, which are conditions that limit the physical use of the property.

Encumbrances that affect the physical use of San Diego, Ca real estate are:

1. easements
2. restrictions
3. encroachments
4. leases

Easements (the right to use another's land)

An easement is an interest in another's land; it is a right. Easements are non-money encumbrances; they are not liens. San Diego homes that are burdened with an easement are said to be “encumbered.”

An EASEMENT is the right to enter, use and exit another person's land for a certain purpose. The right to enter is called INGRESS and the right to exit is EGRESS. Included in this definition is the right to profit from the easement, such as the right to take minerals, oil and gas.

Creation of an easement

Easements are created in three basic ways:

1. Expressed in writing, as in a deed or contract
2. By implication of law (implied easement)
3. By virtue of long use (prescription)

1. EXPRESSED IN WRITING, AS IN A DEED OR CONTRACT. If real estate is transferred as part of the deed, an easement appurtenant to the land would be included in the grant. The same thing is accomplished by transferring a property, but reserving an easement over the land. In any event, a written contract can create an easement between the parties. For legal protection, this contract should be acknowledged and recorded.

2. CREATION BY IMPLICATION OF LAW (IMPLIED EASEMENT). If an easement is implied in a transfer, or if it is necessary for use of the land, then the easement is said to be implied by law. The right to use the land for obtaining minerals implies that you have the right of surface entry in order to extract the minerals.

EASEMENT BY NECESSITY (LANDLOCKED) Is an easement granted by a court if it is absolutely necessary for access. If a person is sold San Diego real estate that landlocks that person, he or she may acquire an easement by necessity. When the grantor transfers a portion of his or her land that leaves the grantee totally surrounded by the grantor (transferor), the grantor can be forced to give an easement of access to the grantee. An easement of access does not have to be the most convenient way of entering the property. If the grantee later acquires another access to his or her property, the easement by necessity is then terminated.

3. LONG USE (EASEMENT BY PRESCRIPTION). Prescription is an easement to continue using land by virtue of having used it for a long period of time (an easement that can be obtained after 5 years of uninterrupted use of another's land).

Possession for 5 continuous years can create a prescription, as long as there is:

1. Open and notorious use
2. Uninterrupted use for 5 years
3. Hostile (without permission of the owner)
4. Under a claim of right.

If a person acquired an easement by prescription, he or she would not have to confront the owner nor would that person have to pay taxes and assessments. An easement obtained by prescription can be terminated if not used.

More