Encumbrance

A restriction on the use of funds or a certain property

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Written by CFI Team

What is an Encumbrance?

An encumbrance is a restriction on the use of funds. It is used in public accounting to make sure that there are sufficient funds to meet certain obligations. Governments use encumbrances to avoid overspending on their finances.

An encumbrance certificate is also used in real estate when there is a claim against a property. For example, it is used when there is a tax lien on the property, making it difficult to transfer the property to a new owner. The encumbrance restricts the policies that the property needs to abide by, such as zoning laws or certain types of construction on the land.

What is an Encumbrance Certificate (EC)?

An encumbrance certificate (EC) is mostly used in the real estate industry and provides confirmation that a property is not subject to any monetary or legal obligation such as an unpaid loan or other liabilities. The EC is an important document for the homeowner as it is proof of legal ownership of the property and also allows the owner to take out loans from banks against the property.

The encumbrance certificate is secured from the local registrar’s office and usually contains all the transactions relevant to a specific period of time. Moreover, the certificate only provides information on documents that are registered with the registrar’s office.

Hence, documents such as short-term lease deeds or testamentary documents will not be included in the transactions on the EC as the documents are not registered under the law.

How to Obtain an Encumbrance Certificate?

The encumbrance certificate can be obtained by the property owner at the local registrar’s office. The owner needs to provide relevant information about the property, such as proof of address and title details, and settle the fee for securing the certificate. The officer will examine the index for transactions pertaining to the property for the specific period.

An encumbrance certificate listing all the details of the transactions for a certain period is then issued to the owner. If there are no transaction details associated with the property, a nil encumbrance certificate is provided.

Types of Real Estate Encumbrances

An encumbrance is a restriction on the property, i.e., the owner cannot transfer the title to someone else. Here are some of the most common encumbrances that can be placed on a property:

1. Lien

A lien is the most common type of encumbrance, and it can be placed on a property to receive a financial obligation from the homeowner, i.e., a mortgage. The lien remains on the property until the mortgage is fully paid. It can also include tax liens for unpaid taxes.

Additionally, a contractor can obtain a lien when they have not received payment for repairs done to the property. If the lien is not satisfied, it can lead to the foreclosure of the house, with the proceeds of the sale going toward the payment of the owner’s debts.

2. Deed restriction

A deed restriction places a restriction on what can be done to the property. It is also known as a restrictive covenant. The restriction can be anything from banning placing a satellite on the roof to designating where cars can be parked. It can also limit the construction of anything on the land.

Deed restrictions help create a standard for what the property can be used for and are often used to protect the value of the property. The restrictions are usually placed on properties with historical significance.

3. Easement

An easement gives a person or entity the right to use the property even though they don’t own it. For example, a utility company might obtain an easement to place power grids on a farmer’s property. A common easement is one that allows the owner of an adjacent property to use the driveway of another property for access.

Another common easement is one that exists when a common walkway to the beach cuts through one owner’s property. The easement is on the land, not the property itself.

4. Encroachment

An encroachment exists when a section of one property extends over to an adjacent property. This can include, for example, a fence that is built along the adjacent property or a tree branch that hangs over a neighboring property. Usually, the property owner encroached upon will want the encroachment to be removed, as an encroachment often makes it harder to transfer their property title to a new owner.

5. License

A license is a right to use another person’s property. The license often comes with rules that need to be followed. Failure to abide by the rules can result in the license being revoked. For example, a license might be obtained to host an event on someone else’s property.