In Maine real estate, mastering easements and encumbrances is not just about passing the licensing exam; it is about protecting clients from costly legal disputes. An encumbrance is any claim, right, or liability attached to a property that may lessen its value or obstruct its use but does not necessarily prevent the transfer of title. Easements, a specific type of encumbrance, grant a non-possessory right to use another person’s land for a specific purpose.

For candidates preparing for the Maine Real Estate Sales Agent or Associate Broker exam, understanding the distinction between voluntary encumbrances (like mortgages) and involuntary ones (like tax liens) is essential. Because Maine follows specific statutes regarding prescriptive easements and property disclosures, practitioners must be diligent in identifying these "clouds on title" early in a transaction to ensure a clear transfer of ownership.

Official Source Check

While this guide provides a comprehensive overview of Maine property law concepts, the following official sources serve as the final authority for regulatory requirements and statutory language. Candidates should consult these links for the most current legal definitions and commission rules:

Understanding Easements in Maine

An easement allows one party to use the land of another. In Maine, these are categorized based on who benefits and how the easement was created. Understanding these categories is a frequent requirement for the state portion of the real estate exam.

Easement Appurtenant vs. Easement in Gross

An Easement Appurtenant "runs with the land," meaning it is attached to the property itself and transfers to the new owner when the property is sold. It involves two parcels: the dominant estate (which benefits) and the servient estate (which is burdened). A common example in Maine is a shared driveway or a deeded right-of-way to a body of water.

An Easement in Gross attaches to an individual or entity rather than the land. These do not typically transfer with the sale of the property unless specified. Commercial easements in gross, such as those held by utility companies for power lines, are the most common type you will encounter in Maine practice.

Easement by Prescription

Maine law is very specific regarding easements created by long-term use. According to Maine Revised Statutes Title 33, §801, an easement by prescription is created if a person uses another's land for a continuous period of at least 20 years. This use must be:

  • Open and notorious (visible to the owner);
  • Adverse or hostile (without the owner's permission);
  • Under a claim of right.

Compliance Tip: To prevent a prescriptive easement from forming, Maine landowners can post specific legal notices or file a notice in the registry of deeds to interrupt the "adverse" nature of the use. See Title 33, §802 for the specific statutory procedure.

Common Encumbrances: Liens and Restrictions

An encumbrance is a broader category that includes easements but also encompasses financial claims and usage restrictions. These must be disclosed to potential buyers as they affect the bundle of rights associated with the property.

Financial Liens

In Maine, liens are a primary concern during the title search. A lien is a creditor's legal claim against a property to secure the payment of a debt.

  • Mortgage Liens: Voluntary liens where the property serves as collateral for a loan.
  • Property Tax Liens: Involuntary, superior liens. In Maine, unpaid municipal property taxes can lead to a "tax lien mortgage," which takes priority over most other claims.
  • Mechanic’s Liens: Filed by contractors or material suppliers who have not been paid for work performed on the property.

Non-Financial Encumbrances

Not all encumbrances involve money. Some restrict how the land can be used or define its physical boundaries:

  • Deed Restrictions (Covenants): Private agreements that restrict the use of real estate (e.g., "no commercial vehicles parked in driveways").
  • Encroachments: The illegal extension of a structure or improvement (like a fence or shed) across a property line. These are often discovered via a "Mortgage Inspection Plan" or a full boundary survey.

Comparison: Easements vs. Liens

Feature Easement Lien
Type of Right Right to use the land Right to force a sale/collect debt
Transferability Usually stays with the land (Appurtenant) Must be cleared at closing
Benefit Benefits a person or another parcel Benefits a creditor
Example Shared Driveway Unpaid Property Taxes

What Candidates and Licensees Get Wrong

One of the most common mistakes on the Maine exam is confusing Easement by Necessity with Easement by Prescription. An easement by necessity is granted by a court when a landowner has no legal access to their property (it is "landlocked"). It is based on the principle that property should not be rendered useless. In contrast, an easement by prescription is earned through 20 years of unauthorized use.

Licensees also frequently struggle with Shoreland Zoning and public access rights. In Maine, the "intertidal zone" (the land between high and low tide) is generally privately owned, but the public has certain limited rights (fishing, fowling, and navigation) based on colonial ordinances. Misrepresenting where a private beach ends and public access begins is a major source of liability.

Practical Exam-Prep Takeaways

  • Remember the Number: 20 years is the statutory period for prescriptive easements in Maine.
  • Priority Matters: Understand that property tax liens generally take priority over other recorded liens.
  • Disclosure is Key: In Maine, licensees have a duty to disclose all known material defects, which includes known encroachments or unrecorded easements.
  • Verify with Surveys: Encumbrances like encroachments are best identified through professional surveys, not just visual inspections.

Frequently Asked Questions