Definition of Encumbrance and Encumbrances in Real Estate

Understanding the Role of Encumbrances in Real Estate

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Definition of Encumbrance: An encumbrance, as it pertains to real estate, means any legal thing that burdens or restricts usage or transfer of the property. A property free-and-clear from any and all encumbrances is rare in many real estate circles. An encumbrance can be a mortgage (loan), a lien (voluntary or involuntary) an easement or a restriction that limits the transfer of title. An encumbrance can involve money, but not always. The saying I grew up with is: All liens are encumbrances, but not all encumbrances are liens. Confused yet?

Deed of Trust or Mortgage as an Encumbrance

A lot of people wrongly assume an encumbrance refers only to a mortgage, for example, because that is the more common usage. When a homebuyer finances the purchase of a home, that financial verification typically consists of two documents: the promissory note, which is an obligation to pay, and the mortgage or deed of trust, which secures the note and is recorded. A mortgage is slightly different than a deed of trust but for our practical purposes, they both are an encumbrance.

When a mortgage or deed of trust has been paid off, the encumbrance is then removed from the property in the public records. A common document to remove an encumbrance is called a reconveyance deed, which reconveys clear title to the property owner.

Trouble happens when the liability for a mortgage or deed of trust has been discharged through a bankruptcy hearing but the loan is never formally released from the property. Not all bankruptcy lawyers practice real estate and some are unaware that a bankruptcy Chapter 7, for instance, does not release the debt and, if they are aware on some level, generally their clients do not want to pay an additional fee to obtain a release of this encumbrance. This oversight can cause a cloud on title (a document, claim, unreleased lien, or encumbrance that could invalidate or impair a title) if the encumbrance is not released.

Voluntary Liens as an Encumbrance

A voluntary lien is a document that an owner willingly signs and it generally is recorded against the property in the public records. It could be a lien in exchange for money changing hands such as a second loan or a home equity line of credit or even a refinance of existing secondary financing.

In some cases, such as a line of credit, there might be no exchange of money until the homeowner actually taps the line of credit, that is, borrows the money. When interest rates were extremely low, I once took out a line of credit and kept that line of credit open for seven years without ever touching it. I treated it as an emergency source of funds, should I ever need it. Eventually, I closed the account without ever using the money. But my husband and I still needed to record a release of that lien.

Involuntary Liens as an Encumbrance

Two types of involuntary liens that are fairly common and spring to my mind are a lis pendens and a mechanic's lien. By involuntary, it means the homeowner did not necessarily agree that such a lien can be filed against the property but a lien nonetheless appeared. Lis pendens is a fancy way of saying pending legal action. Say, for example, that a seller agreed to sell to a buyer but the buyer, for whatever reason, could not close on time, so the seller canceled the contract unilaterally, without the buyer's consent.

To further complicate the matter, let's say the seller desired to sell to another buyer for more money and refused to extend the time to close for the existing buyer. The existing buyer, to prevent the seller from transferring title to the new buyer, might file a court action against the seller and record a lis pendens. The lis pendens would prohibit the sale until the court action was resolved.

A mechanic's lien is generally filed by a contractor or the contractor's sub-contractors for work or materials that remain unpaid. All involuntary liens will need to be paid off for a title company to issue a title policy without naming the encumbrances as exceptions to the title insurance. Involuntary encumbrances remain with the property until released. Further, the buyer's new lender will also require clear title.

Easements as an Encumbrance

Probably the most common type of easement is an easement for maintenance of utilities, but an easement could also be granted for access (right of way) to a parcel of land that is landlocked without a road. Easements are an encumbrance because they prohibit certain actions and affect rights to the property. For example, you cannot build a swimming pool over a location reserved for a city sewer line. Well, you can, but the city can dig up that swimming pool without your permission.

Easements are noted in your title insurance policy and often appear on the assessor's map itself.

At the time of writing, Elizabeth Weintraub, CalBRE #00697006, is a Broker-Associate at Lyon Real Estate in Sacramento, California.