Tuesday, August 24, 2010

Lien vs. Encumbrance

From Rhone v. First American Title Ins. Co., 340 Ill.Dec. 588 (1st Dist. 2010):

We acknowledge the distinction in case law between a lien and an encumbrance. A lien is a "legal right or interest that a creditor has in another's property, lasting usually until a debt or duty that it secures is satisfied.

An encumbrance is broader. It may include "any right to, or interest in, land which may subsist in a third party to the diminution of value in the estate, but consistent with the passing of the fee by conveyance." Encumbrances include not merely liens such as mortgages, judgment liens, or taxes, but also attachments, leases inchoate dower rights, water rights, easements, restrictions on use, or any right in a third party which diminishes the value or limits the use of the land granted.

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