Encumbrance

An encumbrance is a right to or interest in land, held by someone other than the owner, that burdens the land. The BLM Glossary of Surveying and Mapping Terms defines it as "Any right to or interest in land which makes it subject to a charge or liability," and lists examples: "mortgages, judgment liens, attachments, leases, deed restrictions, unpaid taxes, inchoate rights of dower and so forth." An encumbrance does not take title away from the owner. It limits what the owner holds.

State law defines the term for its own purposes

• Arizona. Under A.R.S. 33-435, when the word "grant" or "convey" is used in a conveyance of a fee simple, the grantor impliedly covenants that "the estate is at the time of execution of the conveyance free from encumbrances," and the statute says "the term 'encumbrances' includes taxes, assessments and all liens on real property."
• Nevada. Under NRS 111.170, the words "grant, bargain and sell" imply a covenant that the property is "free from encumbrances, done, made or suffered by the grantor, or any person claiming under the grantor." That covenant covers only encumbrances the grantor or those claiming under the grantor created, which is narrower than the Arizona wording.

Other states use other wording, so the effect of a deed's covenants depends on where the land is.

Common encumbrances in mineral and mining work

• Mortgages, deeds of trust, and judgment liens recorded against an owner
• Unpaid taxes and assessments
• Leases, including mineral leases
• Easements and rights-of-way (see Easement and Right-of-Way)
• Deed restrictions

Burdens on unpatented mining claims

An unpatented mining claim located after July 23, 1955 carries a statutory burden. Under 30 U.S.C. 612(b) it is subject, before patent, "to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof," and to the right of the United States, its permittees, and licensees "to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land," as long as that use does not "endanger or materially interfere" with mining. A BLM right-of-way grant is issued "subject to the valid existing rights of others, including the United States" (43 CFR 2805.14).

Why it matters in mineral title research

• Ownership and encumbrances are two separate questions. A clean chain of title can still carry a mortgage, a lease, or a reservation that cuts into what the owner holds.
• An encumbrance that is valid binds the land. One that is doubtful or already satisfied but never released is a cloud on title (see Cloud on Title).
• Arizona counts liens as encumbrances by statute, which is one reason the state where the land sits has to be checked before reading any deed covenant.