Definition
Incumbrances (also spelled encumbrances) are claims, liens, charges, or liabilities attached to real property that affect its title, limit its use, or diminish its value. The term is the plural of incumbrance and typically appears in transactional and conveyancing contexts where multiple burdens on a property must be identified, disclosed, or cleared.
An incumbrance does not necessarily prevent transfer of the property, but it travels with the title unless extinguished. Common examples include mortgages, judgment liens, easements, restrictive covenants, mechanic's liens, tax liens, and unpaid assessments. Some incumbrances affect the financial value of the property (liens); others affect its use without directly encumbering value (easements, covenants).
In deed practice, the plural form appears most often in the covenant against incumbrances — a standard warranty in which a grantor promises that no incumbrances exist against the property except those expressly noted in the deed.
Common Language
Modern common usage (Wiktionary): Simply the plural of "incumbrance" — burdens, hindrances, or encumbrances on a person or thing.
Historical common usage: In ordinary nineteenth-century English, an incumbrance was any burden, impediment, or dependent obligation weighing upon a person or estate — including, colloquially, dependents or family obligations one was financially responsible for.
The gap between common and legal meaning is one of specificity. In ordinary usage, an incumbrance is any kind of burden. In law, the term is narrowed to claims or interests in real property held by third parties that encumber the owner's title. A researcher encountering the term in a non-legal nineteenth-century source should not assume the property-law meaning; a researcher encountering it in a deed or conveyancing record should not assume the general sense.
Common Confusion
Incumbrances / Encumbrances: These are variant spellings of the same term, not distinct legal concepts. Older legal sources, including Bouvier's, favor "incumbrance"; modern American practice has largely standardized on "encumbrance." Researchers searching historical deed indexes, court records, or treatises must use both spellings or risk missing relevant material.
Incumbrances / Clouds on Title: Related but not identical. All clouds on title involve some defect or adverse claim affecting title, but not all clouds are incumbrances in the strict sense. A forged deed in the chain of title creates a cloud but is not an incumbrance. Incumbrances presuppose a valid, identifiable third-party claim or interest; clouds may arise from ambiguity, defective instruments, or stale claims with no current holder.
Why It Matters in Research
The covenant against incumbrances is one of the most litigated covenants of title in American real property law, and the plural form dominates both pleadings and deed forms throughout the nineteenth and early twentieth centuries. Researchers working with conveyancing records from this period should note several traps:
Spelling variation is pervasive. Pre-twentieth-century sources almost uniformly use "incumbrance" and "incumbrances." Modern secondary sources and indexes use "encumbrance." Full-text corpus searches require both.
The measure of damages for breach of the covenant against incumbrances is a distinct and historically contested issue that appears frequently in case law. Bouvier's reflects the general rule: if the incumbrance can be removed, the purchaser recovers the cost of extinguishment; if it is permanent (such as an easement that cannot be bought out), damages are measured by the diminution in the land's value. Researchers tracing damages doctrine must distinguish between these two measures, as courts applied them differently depending on the nature of the incumbrance.
The term also appears in mortgage instruments, abstracts of title, and title insurance commitments, where a schedule of incumbrances lists all known charges against the property. Researchers examining title chains should treat this schedule as a primary source for identifying encumbered interests that may not appear in the deed itself.
Jurisdictional variation in what qualifies as an incumbrance for purposes of the covenant affected litigation outcomes significantly — some courts held that visible easements or easements of record known to the buyer did not breach the covenant; others did not. Corpus searches on this issue should pair "incumbrances" with "covenant" and "breach" to surface the relevant case clusters.
Historical Dictionary Support
Bouvier's Law Dictionary addresses incumbrances primarily in the context of breach of the covenant against incumbrances, providing useful procedural and remedial guidance rather than a formal definition. Bouvier's framing reflects the dominant nineteenth-century practice focus: the question was less what an incumbrance is and more what a buyer could recover when one was discovered after closing.
Bouvier's two-part damages rule — extinguishment cost for removable incumbrances, diminished value for permanent ones — is well supported by the case law cited and represents the mainstream American approach of the era. What Bouvier's does not address are edge cases that generated substantial litigation: whether an incumbrance known to the buyer at the time of purchase still breaches the covenant, whether the covenant runs with the land to subsequent grantees, and how courts treated nominal versus substantial incumbrances. Researchers relying solely on Bouvier's for a complete picture of the incumbrances doctrine will find it a starting point, not a summary.
Jurisdictional Note
American states diverged on whether a buyer's actual knowledge of an incumbrance at the time of sale defeats a subsequent claim for breach of the covenant against incumbrances. Some courts held that the covenant is a strict promise regardless of knowledge; others implied an exception for incumbrances expressly assumed or visible to the buyer. Researchers should not assume a uniform rule and should verify the applicable jurisdiction's position before drawing conclusions from period case law.