encumbrance – any property right (claim or liability) that is not ownership interest (e.g.. lien, mortgage, easement), attached to real property (or the title or record thereof), that may lessen its value

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n. (16c)

1. A claim or liability that is attached to property or some other right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest.  *  An encumbrance cannot defeat the transfer of possession, but it remains after the property or right is transferred. — Also spelled incumbrance. encumber, vb. [1]

1. Literally a hindrance, impediment, or obstruction, such as an object in a highway. 25 Am J1st High § 272.

The significance in the law is that of any right to, or interest in land conveyed, which may subsist in a third party, to the diminution of the value of the land, but at the same time consistent with the passage of the fee thereto. 20 Am 12d Cov § 81; 55 Am J1st V & P § 225.

Including whatever charges, burdens, obstructs, or impairs the use of the land, depreciates it in value, or impedes its transfer, such as a lien, a mortgage, deed of trust, or an easement. Anno: 57 ALR 1376; 55 Am J 1st V & P § 225.

“Encumbrances” fall into two general classes:

(1) Those which affect or relate to the title or the record thereof, and
(2) those which affect or relate to the actual physical conditions upon the realty such as a path or roadway indicating a servitude. Anno: 64 ALR 1480.

The application of the term “encumbrance” is almost invariably made to real estate, although it would seem entirely proper to speak of a chattel mortgage or lien upon personal property as an “encumbrance.”
See covenant against encumbrances. [2]

1. An interest in land that exists in someone other than the owner of the land.  It reduces the value of the land, but does not prevent the owner from transferring marketable title.  EXAMPLES: a lien, a mortgage, an easement.

2. Any hindrance or impediment. [3]

     Excerpt from John Salmond’s Jurisprudence (Glanville L. Williams ed., 10th ed. 1947):

     “Encumbrances are not confined to the law of property, but pertain to the law of obligations also.  Choses in action may be mortgaged, settled in trust, or otherwise made the subject-matter of jura in re aliena, no less than land and chattels. [4]

     UCC § 9-102(a)(32):

     “‘Encumbrance’ means a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property.

mesne (“meen”) encumbrance: An intermediate encumbrance; an encumbrance that first occurred both earlier and later than other encumbrances.

encumbrance (1858) One having a legal claim, such as a lien or mortgage, against property.

encumbrancer – The holder of an incumbrance; as a person who holds a mortgage. A person who has a legal claim upon an estate. Warden v Sabins, 36 Kan 165, 169. [2]


Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]: Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: [4]: John Salmond, Jurisprudence 435-36 n.(k) (Glanville L. Williams ed., 10th ed. 1947).


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