Property Vocabulary Absolute Title: Exclusive title to land Right to dominion: possessing both title and ownership of property

and having total power over its distribution Seizure: the removal of property from ones possession due to unlawful activity or in satisfaction of a judgment entered by the court Trespass on the Case: action at common law in early England granting a remedy to a person who sustains injury to his person or property as a result of the defendants conduct. Adverse Possession: a means of acquiring title to real property by remaining in actual, open, continuous, exclusive possession of property for the statutory period. Claim of Right: person claiming a right in property is in possession and intends to claim ownership of that property without regard to the record title owner Easement: the right to utilize a portion of anothers real property for a specific use Encroachment: unlawful intrusion onto anothers property Injunction: court order requiring a person to do or prohibiting that person from doing a specific act Stare Decisis: doctrine whereby courts follow legal precedent unless there is good cause for departure Privity of Estate: common/successive relation to the same right in property Quiet Title: Equitable action to resolve conflicting claims to an interest in real property Record Title: title to real property that is recorded in the public land records Taking: a governmental action that substantially deprives an owner of the use and enjoyment of his/her property, requiring compensation Alienation: conveyance/transfer of property Extrinsic Evidence: evidence that is not contained within the text of a document or contract but which is derived from the parties statements or the circumstances under which the agreement was made Holographic Will: handwritten will by the testator/testatrix Intestacy: to die without leaving a valid testamentary instrument Life Estate: an interest in land measured by the life of the tenant or a third party Quitclaim: a deed whereby the grantor conveys whatever interest he or she may have in the property without any warranties or covenants as to title Testatrix: a woman who dies having drafted and executed a will/testament Ameliorative Waste: an unauthorized change in a physical structure, which, though technically waste, in fact increases the value of the land Contingent Remainderman: one who has an interest in property to commence upon the termination of a present possessory interest and subject to a condition precedent. Decree Pro Confesso: a decree founded upon a bill in equity to which the defendant fails to answer Economic Waste: an act done by someone in lawful possession of an interest in land, causing injury to other estate holders in the same property, that diminishes the value of the mineral resources that may be produced from the property

Present Estate Examples Duration Correlative Future Interest in Grantor Future Interest: An interest in property the right to possession or enjoyment of which is to take place at sometime in the future. Remainder Beneficiary: a person who is to receive property that is held in trust after the termination of a preceding income interest Remainder Interest: an interest in land that remains after the termination of the immediately preceding estate Waste: the mistreatment of anothers property bys someone in lawful possession

Present Possessory Estates

Fee Simple Absolute Fee Simple Determinable Fee Simple Subject to Condition Subsequent Life Estate

To A & his heirs To A & his heirs so long as/until/while To A & his heirs, but if upon condition that provided that however To A for life, or To A for the life of B To A for life, then to B To A for life, but if.., to B

Forever As long as condition is met, then automatically to grantor Until happening of named event AND reentry by grantor

None Possibility of Reverter

Right of Entry

Until the end of the measuring life

Reversion

Until the end of the None measuring life Until the end of the measuring life OR the happening of the named event

Cases Acquisition by Discovery. The discovery of the Native American-occupied lands of this nation vested absolute title in the discoverers, and rendered the Native American inhabitants themselves incapable of transferring absolute title to others (Johnson v. MIntosh) Kelo v. City of New London Acquitsition by Capture. Property in wild animals is only acquired by occupancy and pursuit alone does not constitute occupancy or vest any right in the pursuer (Pierson v. Post) Theory and Elements of Adverse Possession. Title to a parcel may vest in an adverse possessor who occupies the parcel under claim of right, protects the parcel by an enclosure, improves or cultivates the parcel, and maintains that state of affairs for the statutory period (Van Valkenburgh v. Lutz) West v. Tilley Walling v. Przybylo

To claim title by adverse possession, the possessor need not have been aware that the land in question was in fact owned by another (Mannillo v. Gorski) Mechanics of Adverse Possession. Where several successive purchasers received record title to tract A under the mistaken belief that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter of law (Howard v. Kunto) Possessory Estates Life Estate. Unless the words and context of a will clearly evidence an intention to convey only a life estate it will be interpreted as conveying a fee estate (White v. Brown) A court may order the sale of property which is held subject to a future interest, but only if a sale is necessary for the best interests of both the life tenant and the remainderman (Baker v. Weedon) For an act to constitute waste in Ohio, the act must diminish the value of the property (Woodrick v. Wood) Defeasible Estates Only where the grantor creates a possibility of reverter will he or his successors become possessory owners of the property immediately upon the breaking of the condition (Mahrenholz v. County Board of School Trustees) A limitation on the use of property, although it might serve to impede its transfer, will not void as a restraint against alientation (Mountain Brow Lodge No.82, Independent Order of Odd Fellows v. Toscano) Where land, restricted by a deed, is taken by eminent domain, a court shall divid the eminent domain damages award between the owner of the fee and the holder of the right of reverter (Ink v. City of Canton) Co-ownership and Marital Interets Severance of Joint Tenancies A joint tenancy may be terminated by the conveyance by one joint tenant of his interest in the joint tenancy property to himself (Riddle v. Harmon) A mortgage on a joint tenants interest does not survive the mortgagor (Harms v. Sprague) Relations among Concurrent Owners-Partition. Partition sales are employed only where partition in kind is unworkable (Delfino v. Vealencis) Sharing the Benefits and Burdens of Co-ownership. Absent an owner physically barring a cotenant from entry upon the owned premises, that owner is not liable to the cotenant for rent (Spiller v. Mackereth) The act of one joint tenant whithout express or implied authority from, or consent of, his cotenant cannot bind or prejudicially affect the rights of that cotenant; but, a

lease to all of the joint property by one joint tenant is not a nullity but rather is valid to the extent of his interest in the joint property (Swartzbaugh v. Sampson) During Marriage. Tenancy-by-the-entirety property may not be reached by the sepearate creditors of either spouse (Sawada v. Endo) Termination of Marriage by Divorce. An educational degree cannot be marital property subject to division upon divorce (In re Marriage by Graham) Termination of Marriage by Divorce. Celebrity status with the accompanying economic opportunities may be a marital asset subject to equitable dissolution (Elkus v. Elkus) Tradition, Tension, and Change in Landlord-Tenant Law The Tenancy at Will. A lease may provide for termination at the will of the tenant only (Garner v. Gerrish) Delivery of Possession. A landlord is obligated only to place a tenant in legal possession (Hannan v. Dusch) Subleases and Assignments. An assignment arises when a lessee transfers his entire interest under a lease (Ernst v. Conditt) Absent contractual language to the contrary, a lessor may not arbitrarily withhold consent to an assignment (Kendall v. Ernest Pestana, Inc.) The Tenant Who Defaults The Tenant in Possession. A landlord may not remove a breaching or defaulting tenants possessions or bar such tenants access to the leasehold without resorting to judicial remedies (Berg v. Wiley) The Tenant Who Defaults The Tenant Who Has Abandoned Possession. A landlord has a duty to mitigate damages when he seeks to recover rents due from a defaulting tenant (Sommer v. Kridel) Quiet Enjoyment and Constructive Eviction. When a landlord causes a substantial interference with the enjoyment and use of the leased premises, the tenant may claim constructive eviction (Reste Realty Corp v. Cooper) The Implied Warranty of Habitability. An implied warranty of habitability exists in residential leases. (Hilder v. St Peter) The Problem of Affordable Housing. The importance of this opinion is to introduce the dilemma of a city attempting to provide affordable housing. The court demonstrated by selecting portions of the ordinance and analyzing them, that the provisions made it harder for landlords to provide affordable, safe housing which

benefited a class of individuals who were not the intended beneficiary (Chicago Board of Realtors, Inc. v. City of Chicago) The Land Transaction Marketable Title. A party cannot convey good merchantable title if violations of covenants or zoning ordinances exist on the subject of property at the time it is to be sold (Lohmeyer v. Bower) The Duty to Disclose Defects. Where a condition that has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure constitutes a basis for recession as a matter of equity (Stambovsky v. Ackley) Where the seller of a home knows the facts affecting the value of a home that are not readily observable, the seller is under a duty to disclose (Johnson v. Davis) Chain of Title Problems. A grantee is bound by restriction in deeds to its neighbors from a common grantor, even if it takes without actual notice and his deed does not mention them, if the grantor has placed in writing the same restrictions on his remaining land (Guillette v. Daly Dry Wall, Inc.)