PRIVATE ENCUMBRANCES Private encumbrances are voluntarily created by private parties who deal with the real property and consist of judgment liens, mechanic’s and materialmen’s liens, mortgages and trust deeds, easements, and restrictive covenants. Judgment Liens A lien is created when the property owner has been sued for a sum of money and a court has entered a judgment against the property owner. For example, a property owner is involved in an automobile accident. The property owner is sued for negligence and a $50,000 judgment is assessed against him by a court of law. Judgment liens do not become liens on real property until they have been recorded in a special book, called the Judgment Book or General Execution Docket, in the county where the real property is located. A judgment lien remains a lien on real property until it has been paid or expires by passage of time. Most states have laws that limit the duration of a judgment lien. These laws provide that a judgment lien, if not paid, will expire within 7 to 14 years after becoming a lien on real property. Judgments attach at the time of recordation to all property then owned by the judgment debtor or to any property thereafter acquired by the judgment debtor. Judgments are potential title problems and can be discovered during a title examination. Mechanic’s and Materialmen’s Liens A mechanic’s or materialmen’s lien is imposed by law on real property to secure payment for work performed or materials furnished for the construction, repair, or alteration of improvements on the real property. Each state has its own laws for the creation of these liens. Claimants under most mechanic’s or materialmen’s lien statutes include contractors, laborers, subcontractors, material suppliers, lessors of equipment and machinery, architects, professional engineers, and land surveyors. Most privately owned real property may be subjected to mechanic’s or materialmen’s liens. The lien attaches to all real property, including improvements, and all real property contiguous to the improved real property. Public real property is not subject to mechanic’s or materialmen’s liens. Special Mechanic’s and Materialmen’s Lien Situations Sometimes special situations exist that prompt the creation of mechanic’s and materialmen’s liens. Landlord and Tenant. Work performed for a tenant of real property only attaches to the tenant’s interest in the real property, and not the landlord’s, unless the landlord of the real property consents to the work and agrees to pay for the work. Contract Seller and Purchaser. Work performed for a purchaser of real property before a purchase and sale contract closes only attaches to the purchaser’s interest unless the seller has consented to the work. Husband and Wife. One spouse is ordinarily not an agent for the other spouse. Work performed at the request of one spouse is not a lien on the other spouse’s real property interest unless the other spouse has consented or agreed to pay.

1. PRIVATE ENCUMBRANCES
Private encumbrances are voluntarily created by private parties
who deal with the real property and consist of judgment liens,
mechanic’s and materialmen’s liens, mortgages and trust deeds,
easements, and restrictive covenants. Judgment Liens A lien is
created when the property owner has been sued for a sum of
money and a court has entered a judgment against the property
owner. For example, a property owner is involved in an
automobile accident. The property owner is sued for negligence
and a $50,000 judgment is assessed against him by a court of
law.
Judgment liens do not become liens on real property until they
have been recorded in a special book, called the Judgment Book
or General Execution Docket, in the county where the real
property is located.
A judgment lien remains a lien on real property until it has been
paid or expires by passage of time. Most states have laws that
limit the duration of a judgment lien. These laws provide that a
judgment lien, if not paid, will expire within 7 to 14 years after
becoming a lien on real property. Judgments attach at the time
of recordation to all property then owned by the judgment
debtor or to any property thereafter acquired by the judgment
debtor. Judgments are potential title problems and can be
discovered during a title examination.
Mechanic’s and Materialmen’s Liens
A mechanic’s or materialmen’s lien is imposed by law on real
property to secure payment for work performed or materials
furnished for the construction, repair, or alteration of
improvements on the real property. Each state has its own laws
for the creation of these liens.
Claimants under most mechanic’s or materialmen’s lien statutes
include contractors, laborers, subcontractors, material suppliers,
lessors of equipment and machinery, architects, professional
engineers, and land surveyors. Most privately owned real

2. property may be subjected to mechanic’s or materialmen’s liens.
The lien attaches to all real property, including improvements,
and all real property contiguous to the improved real property.
Public real property is not subject to mechanic’s or
materialmen’s liens.
Special Mechanic’s and Materialmen’s Lien Situations
Sometimes special situations exist that prompt the creation of
mechanic’s and materialmen’s liens.
Landlord and Tenant. Work performed for a tenant of real
property only attaches to the tenant’s interest in the real
property, and not the landlord’s, unless the landlord of the real
property consents to the work and agrees to pay for the work.
Contract Seller and Purchaser. Work performed for a purchaser
of real property before a purchase and sale contract closes only
attaches to the purchaser’s interest unless the seller has
consented to the work.
Husband and Wife. One spouse is ordinarily not an agent for the
other spouse. Work performed at the request of one spouse is
not a lien on the other spouse’s real property interest unless the
other spouse has consented or agreed to pay for the work.
Joint Tenants. A lien binds only the interest in the real property
of the joint tenant who ordered the work. A joint tenant is not
an agent for the other tenants, and unless the other tenants have
consented or agreed to pay for the work, their interest in the
real property is not liened. Other Mechanic’s and Materialmen’s
Lien Considerations
Other Mechanic’s and Materialmen’s Lien Considerations
The right to a mechanic’s or materialmen’s lien usually arises
once the work is performed or the material is furnished. The
lien right must be perfected by filing a notice or claim of lien in
the public records where the real property is located. Most
states require that this notice or claim of lien be recorded within
a reasonable period of time after completion of the work (60 to
120 days). A claim or notice of lien requires the following
information: (a) the amount of the claim, (b) the name of the

3. lien claimant, (c) the name of the owner, (d) a description of
real property to be liened, and (e) the notarized signature of the
lien claimant. The priority of a lien claim dates from the time
the first work is performed or the material is furnished. It does
not attach from the date the claim of lien is filed, except for
claims of architects, engineers, and land surveyors. For
example, a material supplier provides materials for the
construction of a home on March 1. The material supplier is not
paid and finally files a claim of lien on May 1 for the unpaid
materials. The material supplier’s lien claim dates from March
1, the date the materials were furnished. This also means that
the material supplier is ahead in terms of priority and will be
paid ahead of any other lien claims that date after March 1. A
mechanic’s or materialmen’s lien is enforced through a
foreclosure suit or sale of the real property. States impose time
limits for filing the foreclosure suit. The most common time
limit is one year from the date the claim is due. A mechanic’s or
materialmen’s lien can be waived or terminated by a written
waiver or release of lien. Most states require that lien waivers
or releases of lien be signed by the lien claimant and be
witnessed or notarized.
Mortgages and Trust Deeds
Real property can be pledged as security to pay debts of the
owner. Mortgages and trust deeds are fully discussed in Chapter
10.
Easements
An easement is the right to use real property for a special
purpose, such as a roadway, and can be given by the owner to a
nonowner. Easements are discussed fully in Chapter 5.
Restrictive Covenants
It is possible for real property owners to restrict the use of
their real property. These restrictive covenants may be in the
form of restrictions or covenants found in deeds of conveyance
of the real property or in restrictions that are recorded against
the real property. It is not unusual for real property that has
been subdivided, such as single-family home subdivisions,

4. industrial parks, and condominiums, to have restrictions
regarding the use of the property by future real property owners.
Private restrictive covenants often perform the same function as
public zoning regulations, but in many instances they may be
more restrictive than public zoning regulations. The private
restrictions attempt to regulate the development of the real
property in such a manner as to enhance the value of each
individual owner’s lot or share of the real property. For
example, restrictive covenants found in residential subdivisions
usually restrict the size of the homes that can be built on the
lots, subject the homes to architectural review committees,
regulate the height of the homes, and require that certain
portions of the property be left vacant for purposes of creating
front, rear, and side yards. All these restrictions are designed to
create a nice residential environment that will enhance the value
of each owner’s home. Restrictive covenants are enforced by
injunction or suit for damages. Enforcement may be brought by
any person who bought real property with notice of the
restrictions and in reliance on the restrictions. Therefore, any
homeowner in a single-family subdivision can enforce the
restrictive covenants against other homeowners.
BOOK FOR CITATION
Hinkel, Daniel F.. Practical Real Estate Law (Page 90). Delmar
Cengage Learning. Kindle Edition.
2
M E M O R A N D U M
TO: Supervising Attorney

5. FROM: [Student name]
RE: LP Assignment
DATE:
FACTS: [Include the facts that are necessary to your answer. In
most memos, the facts are written in chronological order.]
QUESTION/ISSUE: [You may have more than one
QUESTION/ISSUE and ANSWER for an assignment.]
ANSWER: [Your answer should include one or more statements
of law with BlueBook citations, an application or analysis of the
law to the facts, and a conclusion. In other words, you are
following the Legal Writing pattern IRAC: I (Issue), R (Rule),
A (Application or Analysis), and C (Conclusion).]
*Use APA style formatting: 1-inch margins, Times New Roman
size 12 font, double-space.
*Use Bluebook citation.