Estimated study time: 45 minutes
Content:
An encumbrance is any claim, lien, charge, or liability attached to real property that affects its title or use. Encumbrances do not prevent the transfer of property but may reduce its value or limit its use. They are broadly divided into financial encumbrances (liens) and non-financial encumbrances (easements, deed restrictions, encroachments). Liens are claims against property for payment of debts; they attach to the title and must generally be satisfied before clear title can be conveyed. Liens are classified as general (attaching to all real and personal property of the debtor) or specific (attaching to a single identified parcel). Voluntary liens (mortgages) arise from the owner's agreement; involuntary liens (tax liens, mechanic's liens, judgment liens) arise by operation of law.
Property tax liens in Massachusetts are superior to virtually all other liens including mortgages — they hold "super-priority" status. When real estate taxes are unpaid, the municipality can foreclose on the property. The owner has an equitable right of redemption for one year from the date of the tax sale to reclaim the property by paying the outstanding taxes, interest, and costs. Special assessments (called "betterments" in Massachusetts) are charges for public improvements such as sewer connections or street paving that directly benefit the property; they also attach as specific liens. The municipality records a municipal lien certificate at closing confirming the amount of any outstanding property taxes, water/sewer charges, and betterments — this certificate is required at every closing.
Easements are non-financial encumbrances granting the right to use another's land for a specific purpose. Easements appurtenant involve two adjacent parcels: the dominant estate benefits from the easement, and the servient estate bears the burden. An easement for a shared driveway is a classic example. Easements appurtenant run with the land — they transfer automatically with both the dominant and servient estates. Easements in gross are personal rights benefiting an individual or entity (e.g., a utility company's right to run power lines) rather than a neighboring parcel. Easements can be created by deed, implication, necessity, or prescription (analogous to adverse possession: open, notorious, continuous, hostile use for 20 years in Massachusetts). An encroachment occurs when a structure or improvement (fence, building, driveway) extends onto a neighboring parcel; failure to address an encroachment over time can give rise to an adverse possession or prescriptive easement claim.
Deed restrictions (restrictive covenants) are private limitations on land use contained in deeds or separate agreements recorded in the chain of title. They run with the land and bind all future owners if properly recorded and intended to run. In a subdivision, deed restrictions typically apply uniformly to all lots (CC&Rs — conditions, covenants, and restrictions). If there is a conflict between a deed restriction and a zoning ordinance, the more restrictive requirement prevails. Massachusetts environmental encumbrances are significant: Chapter 21E (the Massachusetts Oil and Hazardous Material Release Prevention and Response Act) imposes liability for contamination cleanup on current and former owners and operators; environmental liens for remediation costs can attach to property. Wetlands buffers under the Massachusetts Wetlands Protection Act prohibit construction within 100 feet of wetlands.
Key Terms:
Quiz Questions:
Q1. A homeowner fails to pay real estate taxes for two years. The town conducts a tax sale. The former owner wants to reclaim the property. What is the former owner's option?
A) The former owner has no recourse once the tax sale occurs B) The former owner may exercise the equitable right of redemption within one year of the tax sale by paying taxes, interest, and costs C) The former owner may contest the tax sale in Superior Court at any time within 10 years D) The former owner must purchase the property back at fair market value from the tax sale buyer
Answer: B — Massachusetts law provides a one-year equitable right of redemption after a tax sale. The former owner may reclaim the property by paying the outstanding taxes, interest, penalties, and costs within that period.
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Q2. A utility company has the right to run power lines across a private landowner's property. The right was granted in a recorded easement but benefits no adjacent parcel — it benefits only the utility company. What type of easement is this?
A) Easement appurtenant — dominant estate is the utility company's service area B) Easement by necessity C) Easement in gross D) License
Answer: C — An easement benefiting a company or individual rather than an adjacent parcel is an easement in gross. Utility company easements are the most common example of easements in gross.
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Q3. A fence built by a neighbor extends 2 feet onto the buyer's property. The buyer's attorney discovers this during the title examination. What is the legal term for this situation?
A) Easement by implication B) Prescriptive right C) Encroachment D) Deed restriction violation
Answer: C — An encroachment is the intrusion of a structure or improvement onto a neighboring parcel. The buyer should require the encroachment to be resolved (fence moved or easement granted) before closing to avoid a potential future adverse possession or prescriptive easement claim.
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Q4. A subdivision deed contains a restriction prohibiting any structure over two stories. The local zoning ordinance allows three-story buildings. A homeowner wants to build a three-story addition. Which rule governs?
A) The zoning ordinance — public regulation supersedes private restrictions B) The deed restriction — the more restrictive private covenant limits the owner to two stories C) The homeowner may choose which rule to follow D) Neither — deed restrictions in subdivisions are unenforceable after 30 years
Answer: B — When a deed restriction and zoning ordinance conflict, the more restrictive requirement controls. The two-story deed restriction is more restrictive than the three-story zoning allowance, so the homeowner is limited to two stories.
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Q5. A property in Massachusetts has been used as a chemical dry-cleaning facility. The building is being sold. The buyer's attorney conducts due diligence and discovers the seller has not disclosed potential soil contamination. Under Chapter 21E, who may bear liability for cleanup costs?
A) Only the party that caused the contamination B) Only the current owner at the time the contamination is discovered C) The current owner, former owners, and operators who caused or contributed to the release D) The state of Massachusetts exclusively, under the Superfund program
Answer: C — Chapter 21E imposes strict liability (regardless of fault) on current and former owners and operators of contaminated property. Liability is joint and several — the state can pursue any or all responsible parties for full remediation costs.
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