Ohio Real Estate Ch 3

Estates in Land

An estate in land precisely defines the owner's degree, quantity, nature, and extent of interest in real property. It determines the type and duration of ownership rights an individual holds, ranging from temporary use to absolute ownership.

Free Hold Estate

Freehold estates represent ownership interests in real property for an indeterminable or indefinite period of time. These are generally considered more substantial forms of ownership compared to leasehold estates

Free Simple Estate

This is the highest and most comprehensive type of interest in real estate recognized by law, granting the owner the fullest bundle of rights

Fee Simple Absolute

This form of fee simple ownership has no limitations on its inheritable nature and no conditions on its use, except for standard public restrictions (like zoning laws, property taxes, and eminent domain) and private restrictions (such as restrictive covenants or homeowners' association rules). The owner has complete control over the property and can transfer it freely.

Fee Simple Defeasible

This is a qualified or limited interest in real estate, meaning that ownership is subject to the occurrence or nonoccurrence of a specified event. If the condition is violated or the event occurs, the estate may revert to the former owner or their heirs

Fee Simple Determinable

This estate exists "so long as," "while," "during," or "until" a specific limitation is met. If the stated condition is violated or ceases to exist, the ownership automatically reverts to the former owner or their heirs without the need for legal action. The former owner retains a possibility of reverter, which is a future interest.

Fee Simple Subject to a Condition Subsequent

This estate exists provided a specific condition is not violated. If the condition is broken, the former owner retains a right of reentry (or power of termination) but must take legal action to reclaim the property. The ownership does not revert automatically upon breach of condition.

Life Estate

This is an interest in real property that is limited to the duration of a lifetime. The measuring life can be that of the owner (life tenant) or of another designated person or persons. Upon the death of the measuring life, the estate terminates, and ownership typically passes to a remainderman or reverts to the original grantor.

Pur Autre Vie

(French for "for the life of another") This type of life estate is created by the owner through a deed or will for the life of a person other than the life tenant themselves. For example, an owner might grant a life estate to person A for the life of person B. When person B dies, the life estate terminates.

Remainder Interest

This is a future interest in the fee simple estate held by a designated third party, known as the remainderman. The property will pass to the remainderman automatically when the life estate ends. The remainderman's interest is vested during the life estate but becomes possessory only upon its termination.

Reversionary Interest

This occurs when the property returns to the original owner (the grantor) or the original owner's heirs when the life estate ends. If the grantor does not specify a remainderman, or if the remainderman predeceases the life tenant without heirs, the property reverts to the grantor or their estate.

Legal Life Estates

These are distinct from conventional life estates as they are created by state statute rather than voluntarily by the owner through a deed or will. They are designed to protect surviving spouses and family members.

Dower

Historically, Dower was the life estate interest of a wife in the real property of her deceased husband. It was intended to provide support for the widow. Many states have abolished or significantly modified dower laws.

Curtesy

the life estate interest of a husband in the real property of his deceased wife. While largely historical in modern law, the concept was similar to dower, providing support for the widower.

Homestead Rights

This is a legal life estate granted in real estate occupied as the family home. Homestead laws protect a portion of the equity in a residence from forced sale by unsecured creditors during the occupant’s lifetime (e.g., judgment liens from credit cards or medical bills). It ensures a basic level of housing security for families.

Encumbrances

Are claims, charges, or liabilities that attach to real estate, diminishing its value or restricting its use, but do not necessarily prevent the transfer of its title. They essentially create an interest in the property for someone other than the owner.

Lien

A charge against property that provides security for a debt or other obligation of the property owner. If the debt is not paid, the lienholder can take legal action to force the sale of the property to satisfy the debt. (See Unit 15 for more details on specific types of liens).

Private Agreement Affecting the Use of Land

These are contractual limitations on property use established by private parties, often found in subdivisions or planned communities. Examples include Covenants, Conditions, and Restrictions (CC&Rs) which are typically recorded documents that maintain aesthetic standards, property values, and regulate specific uses within a development.

Easement

A non-possessory right to use the land of another for a particular, specific purpose. It grants certain usage rights without conveying ownership.

Easement Appurtenant

A right to use another's land that benefits a specific parcel of land. It involves two parcels: the dominant (benefited) and servient (burdened) estates.

Servient Tenement

This is the property that bears the burden of the easement; it allows the dominant tenement owner to use a portion of its land.

Dominant Tenement

This is the property that benefits from the easement; its owner has the right to use the servient tenement for the specified purpose.

Party Wall Easement

This specific easement is used for a wall that straddles the property line of adjacent properties with different owners. Each owner usually has a shared ownership and responsibility for the maintenance of the wall.

Easement in Gross

This is an individual or company interest in, or right to use, the land of another, without being tied to a specific dominant tenement. It benefits a person or entity, not a particular parcel of land. These are frequently used by utility companies for power lines, pipelines, or access for maintenance.

Easement by Necessity

This arises because owners must have ingress to and egress from their land. It is typically granted by a court when a parcel is landlocked, meaning it has no access to a public road except by crossing another's property. The law assumes the parties intended to create an easement for access.

Easement by Prescription

This arises when a person uses another's land without the owner's express permission, and that use has been visible, open, notorious, adverse, and continuous for a statutory period (which varies by state, e.g., 5 to 20 years). The use must be without the owner's approval (hostile) rather than secret.

Tacking

This legal concept allows successive periods of continuous and uninterrupted occupation by different parties to be combined to meet the statutory requirement for a prescriptive easement, provided there is privity of interest between the parties (e.g., buyer and seller).

License

A license is a personal, non-assignable privilege to use another's land for a specific purpose. Unlike an easement, a license does not create an interest in the land and can be terminated or canceled by the licensor (the property owner) at any time. For example, permission to hunt on someone's land or to park a car in a neighbor's driveway.

Encroachment

An encroachment occurs when anything illegally extends from one property across the property line onto an adjacent parcel, or beyond legal building lines (e.g., a fence, a garage, or even tree branches). Encroachments are typically discovered by a survey and can lead to legal disputes or, if left unaddressed for a statutory period, potentially to a prescriptive easement or adverse possession.

Lis Pendens

(Latin for "suit pending") This is a recorded notice of pending legal action affecting the title of property. It serves as a warning to potential purchasers or lenders that the property is subject to a lawsuit that could affect ownership or future transfers, making the property's title unmarketable until the litigation is resolved.

Governmental Powers (PETE)

Governmental powers represent inherent limitations on private property ownership imposed by federal, state, and local governments for the general welfare, safety, and health of the community. These powers supersede the rights or interests of the individual property owner.

P = Police Power

This is the inherent right of government to regulate private property to protect public health, safety, morals, and general welfare.

E = Eminent Domain

This is the inherent constitutional right of the government to take privately owned real estate for public use, even if the owner does not wish to sell. Condemnation is the legal process by which this right is exercised.

Legal Protections for the Property Owner

The Fifth Amendment to the U.S. Constitution (applied to states via the Fourteenth Amendment) provides crucial protections

Legitimate Public Use

The proposed use must be declared by the courts to be for a legitimate public purpose (though this has been defined more broadly over time, including economic development). A significant reference case is Kelo v. City of New London (2005), where the U.S. Supreme Court found that a city properly invoked a state statute authorizing the use of eminent domain to promote economic development through private

Just Compensation

The property owner must receive "just compensation" for both the property taken and any diminished value of the remaining property (severance damages). Just compensation typically means the fair market value of the property at the time of the taking.

Due Process of Law

The rights of the owner must be protected under due process of law, meaning they must receive proper notice and an opportunity to be heard regarding the taking and the compensation offered.

Inverse Condemnation

This is an action brought by a property owner against the government, seeking just compensation for a loss in land value or use, alleging that the government’s action (or inaction) has effectively "taken" or significantly damaged their property for a public purpose, even without formally initiating condemnation proceedings. For example, if a new highway severely restricts access to a private business.

T = Taxation

This is a charge on real estate by a governmental body to raise funds to meet the costs of government operations and provide public services (e.g., schools, police, fire departments). Property taxes are typically ad valorem (based on value) and are a primary source of local government revenue. (See Unit 15 for a detailed discussion on property taxation).

E = Escheat

This governmental power provides that the ownership of real estate will revert, or escheat, to the state (or county) in which it is located when its former owner dies intestate (without a valid will) and has no discoverable natural or legal heirs. This prevents property from becoming unowned or abandoned.

Dower Rights (Ohio Specific)

In Ohio, dower rights still exist as an interest in real estate that protects a spouse who does not hold legal title. While modified from its historical form, it generally grants a non-titleholding spouse a one-third interest in all real property owned by the other spouse during the marriage, which becomes effective upon the death of the titleholding spouse. Both spouses must sign deeds to release these rights when conveying property.

Homestead Exemptions (Ohio Specific)

Ohio homestead laws provide significant property tax relief and asset protection. Ohio law allows for a portion of the value of a qualifying residence to be declared a homestead and exempted from property taxes for certain eligible individuals, as well as protection from seizure by unsecured creditors.

Homestead Definition

In Ohio, the homestead is defined as the home of the family that must be occupied as a primary residence. It also provides an exemption of up to 26,200 of the market value of the home from real property taxation, reducing the taxable valuation.

Fee Tail Estate (Ohio Specific)

A fee tail estate is a now largely historical freehold estate that limits the inheritance of an estate to the grantee’s lineal blood descendants by specific words of limitation (e.g., "to A and the heirs of his body"). This type of estate prevents the property from being sold outside the family line. In Ohio, fee tail estates typically convert to fee simple absolute upon transfer to the first lineal heir. Questions concerning fee tail estates should always be referred to legal counsel due to their complexity and limited modern relevance.

Encroachment (Ohio Specific)

An encroachment occurs when a structure, improvement, or object (like a fence, portion of a building, or overhanging eaves) partially or entirely is placed upon a neighboring property or extends beyond legal building setbacks. In Ohio, long-standing, unaddressed encroachments could potentially result in legal claims for adverse possession or the creation of a prescriptive easement.

Adverse Possession

This is a legal doctrine allowing a person to claim ownership of land by proving open, notorious, hostile, adverse, exclusive, and continuous possession of the land for the statutory period (in Ohio, generally 21 years). The possession must be without the owner’s permission.

Prescriptive Easement

This is a claim to use, but not possess, another’s land. In Ohio, a prescriptive easement can be established if the use is hostile (without permission), uninterrupted, continuous, open, notorious, and with the actual or constructive knowledge of the owner for a statutory period (21 years).

Eminent Domain (Ohio Specific)

Condemnation proceedings in Ohio are governed by specific Ohio statutes, ensuring that the taking of real property by the government (or an authorized entity) without the owner’s consent strictly adheres to legal requirements. The owner receives “just compensation,” which is typically determined as the fair market value of the property at the time of the taking, as established by appraisal and potentially court proceedings.

Riparian Rights (Ohio Specific)

These are legal rights in the ownership of real property adjacent to navigable rivers or other flowing bodies of water. In Ohio, riparian owners generally have rights to access the water for reasonable use, subject to state regulations regarding public navigation and environmental protection. For non-navigable waters, ownership usually extends to the center of the waterway. (This is distinct from littoral rights, which pertain to properties bordering static bodies of water like lakes or oceans).