Approved-source preservation: The recovered Land Use Controls & Regulations manuscript remains preserved verbatim in Chapter 4. This chapter develops the private-control topics into their own complete lesson without replacing or duplicating that source.

Learning Objectives

• Distinguish private land-use controls from governmental regulation.
• Explain restrictive covenants, deed restrictions, conditions, association rules, and architectural standards.
• Classify easements by purpose, parties, creation, and termination.
• Distinguish an easement from a license, encroachment, lien, and lease.
• Analyze boundary, access, shared-driveway, party-wall, and encroachment scenarios.
• Explain how public regulation and private restrictions can apply to the same property.
• Identify brokerage due-diligence duties and issues requiring title or legal review.

Key Vocabulary

Term	Definition
Restrictive Covenant	A private promise limiting or directing land use, usually contained in a deed, declaration, plat, or recorded agreement.
CC&Rs	Covenants, conditions, and restrictions governing property within a planned community, subdivision, or condominium.
Servitude	A broad term for a private right or burden affecting land, including many easements and covenants.
Easement	A nonpossessory right to use another person’s land for a stated purpose.
Easement Appurtenant	An easement benefiting one parcel and burdening another, ordinarily passing with the land.
Dominant Tenement	The parcel benefited by an easement appurtenant.
Servient Tenement	The parcel burdened by an easement.
Easement in Gross	An easement benefiting a person or entity rather than another parcel.
Express Easement	An easement intentionally created by written grant or reservation.
Easement by Necessity	An easement that may arise when land is severed and access is legally necessary, subject to state-law requirements.
Prescriptive Easement	An easement claimed through qualifying use for the statutory period; exact elements and duration are state-specific.
License	Personal, revocable permission to enter or use land that ordinarily does not create an interest in real property.
Encroachment	An improvement or physical object extending across a boundary or into another protected area.
Party Wall	A wall located on or serving properties on both sides of a boundary, with rights and obligations defined by law or agreement.
Injunction	A court order requiring a person to act or stop acting.
Merger	Possible termination of an easement when the same owner acquires both the dominant and servient estates in compatible title.

Core Lesson

Private Controls Come From Property Rights and Agreements

Zoning and building codes are public controls enforced by government. Private controls arise from recorded promises, grants, reservations, association documents, leases, and other property interests. A use can satisfy zoning yet violate a private covenant. It can also satisfy private documents yet remain prohibited by public law. Students should apply the approved two-layer rule: the proposed use must satisfy both applicable public controls and enforceable private restrictions.

Restrictive Covenants and Deed Restrictions

A restrictive covenant can limit building type, minimum size, exterior materials, fencing, signs, parking, leasing, pets, or other uses. A restriction may appear in a single deed or in a recorded declaration applying to an entire development. The document, chain of title, governing law, amendments, waivers, expiration provisions, and enforcement history all matter.

A broker should not assume a restriction is valid merely because it appears in an old document—or invalid merely because neighbors violate it. Enforceability may involve notice, proper creation, changed conditions, abandonment, waiver, discriminatory language, statutory limits, or procedural requirements. Title and legal professionals decide those questions.

Homeowners and Condominium Associations

An association may administer recorded CC&Rs, bylaws, rules, budgets, assessments, architectural standards, and common-area obligations. The declaration usually establishes the property burden and enforcement authority; bylaws generally govern organizational procedure; rules supply operational detail. Buyers should receive and review all applicable documents, financial information, pending violations, approval requirements, and leasing restrictions within the transaction’s legal and contractual timelines.

Association approval does not replace government approval. Architectural permission for a deck does not establish that the deck satisfies zoning setbacks or building codes.

Easements: Rights to Use Land Without Possession

An easement allows limited use of land owned by another. It does not ordinarily give the easement holder possession of the entire property. Always identify the purpose, location, benefited party, burdened parcel, duration, maintenance obligations, relocation rights, and termination language.

Appurtenant Easements

An easement appurtenant connects two parcels. The dominant tenement receives the benefit; the servient tenement bears the burden. Because the right is tied to land, it ordinarily passes with the parcels even when later deeds do not restate every detail, subject to recording and notice law.

Easements in Gross

An easement in gross benefits a person or organization rather than another parcel. Utility easements are the standard exam example. Whether an in-gross easement is transferable depends on its character, language, and law.

Creation

• Express grant: the servient owner grants a written easement.
• Express reservation: an owner conveys land but reserves an easement over it.
• Necessity: state law may imply access after common ownership is severed and legal necessity exists.
• Implication: a preexisting, apparent, and reasonably necessary use may support an implied easement under state law.
• Prescription: qualifying use for the statutory period may create a prescriptive right. Permission defeats the hostile/adverse quality commonly required.
• Government action: condemnation or plat dedication can create access or utility rights.

Termination

An easement may end by stated expiration, release, merger, abandonment supported by required conduct, termination of necessity, condemnation, or other law. Mere nonuse does not always establish abandonment. Destruction of a structure may end a right tied only to that structure, while many recorded easements survive changes in ownership.

Licenses, Encroachments, and Adverse Claims

A license is personal permission, such as permission to park during an event. It is usually revocable and does not run with land. An encroachment is a physical intrusion—a fence, driveway, roof, wall, or improvement crossing a boundary or violating a protected area. A survey reveals physical relationships; title work identifies recorded rights. Both may be needed.

An encroachment can affect marketability, financing, insurance, use, and future disputes. Possible resolutions include removal, boundary agreement, easement, license, purchase of land, or litigation. The broker should identify the issue and coordinate experts, not select a legal remedy.

Brokerage Due Diligence

Useful sources include the title commitment, recorded declaration, plats, surveys, deeds, association resale information, estoppel statements, zoning records, permit files, and written professional opinions. Advertising should never promise “no restrictions,” “build anything,” or “unlimited rentals” without reliable verification.

PASS FIRST Decision Guide
Government rule? Check zoning, codes, permits, and agencies. Recorded private promise? Check title documents and governing instruments. Right to cross or use land? Identify the easement and parcels. Object crosses a boundary? Obtain survey and title/legal review. Personal permission only? Consider whether it is a license rather than an easement.

Indiana Law Spotlight

Partially verified against current authority. Indiana Code Title 32 contains the principal statutory frameworks relevant to conveyances and recording, condominiums, homeowners associations, and fences. IC 32-21-1-13 requires covered conveyances of land or interests in land to be in writing, signed by the proper transferor, and acknowledged or proved. IC 32-25 and IC 32-25.5 provide statutory frameworks for condominiums and homeowners associations. These authorities reinforce the two-layer rule: public zoning approval does not erase an enforceable private restriction, and association approval does not replace public approvals.

Still open: Easements by necessity, implication and prescription; the applicable prescriptive period; covenant running, amendment, waiver, abandonment, changed conditions and expiration; discriminatory covenant treatment; association powers and disclosures; encroachment and party-wall remedies; and easement relocation, maintenance or termination remain queued for current statutory and controlling-case review. Brokers should obtain the instruments and refer legal conclusions rather than predicting enforceability.

Indiana Code Title 32 ↗ · Indiana Appellate Decisions ↗ · HUD Fair Housing ↗

National Exam Alert

Know the vocabulary pairs: dominant benefits / servient bears; appurtenant benefits land / in gross benefits a person or entity; easement is an interest / license is permission; encroachment is physical / covenant is written. A private restriction can be stricter than zoning.

Common Exam Trap

Do not say an easement gives ownership or exclusive possession. Do not assume permission creates prescription; permission generally defeats the adverse element. Do not assume a survey and title search reveal the same information.

PASS FIRST Memory Trick

D-S: Dominant gets the right; Servient supports the burden.
E-L-E: Easement = Land interest; License = Easily revoked; Encroachment = Extends across.

Broker Insight

If access, boundaries, leasing rights, or association approval affect the client’s decision, obtain the documents before the client becomes unable to cancel. State the source of every representation. “The listing says” is not a title opinion.

Chapter Summary

• Private controls arise from agreements and property interests rather than police power.
• Public and private rules apply simultaneously.
• Covenants and association documents can restrict use and impose obligations.
• Easements grant limited use without ownership of the servient land.
• Appurtenant easements involve dominant and servient parcels; in-gross easements benefit a person or entity.
• Licenses are generally personal permission; encroachments are physical intrusions.
• Surveys, title records, and association documents answer different questions.
• Indiana conveyance, condominium, and homeowners-association frameworks are verified at the statutory level; instrument- and case-specific enforcement outcomes remain queued.

Practice Questions

1. Recorded subdivision rules prohibit short-term rentals although zoning allows them. Which rule should the owner follow?
   1. Zoning only
   2. Whichever rule is newer
   3. The private restriction only if enforceable, while also satisfying zoning
   4. Neither rule
2. An easement appurtenant benefits Parcel A and burdens Parcel B. Parcel A is the:
   1. Servient tenement
   2. Dominant tenement
   3. Licensee
   4. Encroachment
3. A utility company holds a right to maintain lines across many parcels without owning a benefited parcel. This is most likely:
   1. A license coupled with rent
   2. A tenancy in common
   3. A deed restriction
   4. An easement in gross
4. A neighbor has verbal permission to use a driveway until the owner withdraws consent. The right is most likely a:
   1. License
   2. Fee estate
   3. Prescriptive easement automatically
   4. Lien
5. A garage extends two feet across the surveyed boundary. This is a(n):
   1. Special assessment
   2. Variance
   3. Encroachment
   4. Escheat
6. Which document usually creates the property burden in a planned community?
   1. Tax bill
   2. Broker commission agreement
   3. Building permit
   4. Recorded declaration or CC&Rs
7. Which statement about association approval is correct?
   1. It replaces zoning approval
   2. It is a separate private layer and does not replace public approvals
   3. It guarantees a building permit
   4. It transfers title
8. An owner conveys the rear parcel and reserves a driveway right over the front parcel. The easement was created by:
   1. Reservation
   2. Prescription
   3. Escheat
   4. Taxation
9. Long use of a path occurred with the owner’s express permission. Which element of a typical prescriptive claim is most doubtful?
   1. A benefited person
   2. Adverse or hostile use
   3. Physical location
   4. Visibility of land
10. Which source best identifies the recorded route of an access easement?
    1. A verbal neighborhood custom alone
    2. A listing photograph
    3. A tax rate
    4. Title records and the referenced instrument or plat
11. Which professional product best shows whether a fence physically crosses a boundary?
    1. Survey
    2. Income statement
    3. Loan estimate
    4. Appraisal license
12. A covenant allows only residential use while zoning permits retail. The owner may open a store:
    1. Automatically because zoning controls everything
    2. Whenever a broker approves
    3. Only after considering enforceability of the private covenant as well as public approvals
    4. Without reviewing title
13. When one owner acquires both dominant and servient parcels in compatible title, the easement may terminate by:
    1. Subrogation
    2. Avulsion
    3. Merger
    4. Novation
14. Mere nonuse of a recorded easement always proves abandonment. This statement is:
    1. True in every state
    2. False; abandonment ordinarily requires the legally required intent or conduct
    3. True if a broker says so
    4. True after one year
15. A buyer asks whether an old covenant is legally unenforceable. The broker should:
    1. Issue a title opinion
    2. Delete it from the record
    3. Promise it will not matter
    4. Provide the document and recommend title or legal review
16. A shared wall serving attached buildings is most commonly called a:
    1. Party wall
    2. Police-power wall
    3. Tax wall
    4. Remainder wall
17. Which remedy is a court order directing someone to stop violating a covenant?
    1. Variance
    2. Injunction
    3. Assessment ratio
    4. Escheat
18. A right to use another’s land without possessing the entire parcel is the best definition of:
    1. Fee simple
    2. Leasehold possession
    3. Easement
    4. Mortgage
19. A buyer relies on “no HOA” in an advertisement, but a recorded declaration exists. What was the best preventive practice?
    1. Verify title and recorded community documents before making the claim
    2. Rely on the seller’s memory
    3. Ignore private records
    4. Check zoning only
20. Which statement best summarizes private-control due diligence?
    1. One online map answers every question
    2. Public approval eliminates private restrictions
    3. Brokers should decide enforceability
    4. Use title, survey, association, and legal sources appropriate to the issue

Detailed Answer Explanations

1. C. Zoning and enforceable private restrictions operate as separate layers. Permission under one does not excuse violation of the other.
2. B. The dominant tenement receives the appurtenant benefit; the servient tenement bears the easement burden.
3. D. A utility easement commonly benefits the utility entity rather than a separate dominant parcel, making it an easement in gross.
4. A. Revocable personal permission is a license. Permission alone does not automatically create a prescriptive easement.
5. C. A physical improvement crossing a boundary is an encroachment. A survey helps establish the physical relationship.
6. D. The recorded declaration or CC&Rs ordinarily establishes restrictions that run with property in the development.
7. B. Association approval is private. The owner must separately satisfy zoning, permitting, and building-code requirements.
8. A. When a grantor transfers land but keeps a right over it, the express easement is created by reservation.
9. B. A typical prescription claim requires use without permission under a claim of right. Express consent undermines that element.
10. D. The recorded easement instrument or plat defines the legal right and route; informal sources are not substitutes.
11. A. A survey locates boundaries and visible improvements. Title work identifies recorded legal interests.
12. C. Retail zoning permission does not cancel an enforceable residential-only covenant. Both layers require analysis.
13. C. Merger may occur when the same owner holds both parcels in compatible ownership because one cannot ordinarily hold an easement over one’s own unified land.
14. B. Nonuse alone may be insufficient. The required evidence of abandonment is governed by the instrument and state law.
15. D. Covenant enforceability is a legal-title question. The broker should obtain the record and refer the conclusion.
16. A. A party wall serves structures or parcels on both sides of a boundary under legal or contractual rights.
17. B. An injunction orders conduct to stop or occur. Courts may use it to enforce valid private restrictions.
18. C. An easement is a nonpossessory use right. A lease conveys possession, while fee simple is ownership.
19. A. Claims about associations or restrictions should be verified against title and recorded documents, not memory or marketing copy.
20. D. Different sources answer different questions: title for recorded rights, surveys for physical conditions, association records for governance, and counsel for legal conclusions.

Mastery Checklist

• I can distinguish public controls from private controls.
• I can explain the two-layer compliance rule.
• I can identify covenants, declarations, bylaws, and association rules.
• I can classify appurtenant and in-gross easements.
• I can identify dominant and servient tenements.
• I can recognize common methods of easement creation and termination without inventing state-specific elements.
• I can distinguish easements, licenses, encroachments, leases, and liens.
• I know when title records, a survey, association documents, or legal review are required.
• I can identify every Indiana-law item in this chapter that remains flagged for verification.
• I can score at least 80% and explain each answer.