Glossary

ABSTRACT OF TITLE

A concise, summarized history of the title to a specific parcel of real property, together with a statement of all liens and encumbrances affecting the property. The abstractor searches the title as recorded in the Bureau of Conveyances, the Land Court, the Circuit Court and other official sources. He then summarizes the various instruments affecting the property and arranges them in chronological order of recording, starting with the original grant of title. The abstract also includes a list showing which public records he has not searched in preparing his report. The Abstract of Title does not guarantee or assure the validity of the title of the property. It merely discloses those items about the property that are of public record.

ACKNOWLEDGMENT

A formal declaration made before a duly authorized officer usually a Notary Public by a person who has signed a document. The officer witnesses the signature as being the voluntary act and genuine signature of the person signing it, who is personally known to the officer or whose identity is proved by adequate identification. The officer will be liable for damages caused by his negligent failure to adequately identify the person signing, as where forgery occurs. A document will not be accepted for recording unless it is acknowledged.

ADMINISTRATOR

A person appointed by the court to settle the estate of a person who has died intestate - that is, leaving no will.

ALLODIAL

The free ownership of land by individuals.

AMERICAN LAND TITLE ASSOCIATION (ALTA)

An association of title insurance companies whose members usually insure lenders against defects in the borrower's title to property which is pledged as security for a loan. The ALTA policy is an extended coverage policy in that it insures the lender against title defects, such as unrecorded documents.

ASSESSMENT

A charge against real estate made by a unit of government to cover the cost of an improvement, such as a street or sewer.

ASSIGNMENT OF LEASE

The transfer of all title, right and interest that a lessee possesses in certain real property. The document used to convey a leasehold is called an "Assignment of Lease" rather than a Deed.

ATTACHMENT

The legal process of seizing the real or personal property of a defendant in a law suit, by levy or judicial order, and holding it in the custody of the court as security for satisfaction of the judgment which the plaintiff may recover in any action upon a contract, express or implied. Real property is attached by recording a copy of the Writ of Attachment in the Bureau of Conveyances. The statement thus creates a lien against the property before entry of a judgment so that the plaintiff is assured there will be property left to satisfy the judgment. The lien can be enforced by issuance of execution after a judgment for the plaintiff.

ATTESTATION

The act of witnessing another's signing of an instrument, performed by a subscribing witness.

BENEFICIARY

A person who receives and benefits from the gifts or acts of another, such as one who is designated to receive the proceeds from a will.

BEQUEATH

To leave personal property to another by will. Bequest is the noun form.

BONAFIDE

In good faith. A bonafide purchaser is one who acquires in good faith and for a valuable consideration without knowledge, actual or constructive, of the prior rights or equities of third parties.

BOUNDARIES

The perimeters or limits of a parcel of land as fixed by legal descriptions which, in Hawaii, is usually a metes and bounds description.

BUNDLE OF RIGHTS

An ownership concept describing all those legal rights which attach to the ownership of real property, including the right to sell, lease, encumber, use, enjoy, exclude, will, etc. When purchasing real estate, one actually buys the rights previously held by the seller, except those which are reserved or limited in the sale.

BUREAU OF CONVEYANCES

The state office housing all legal documents having been recorded since the Great Mahele of 1848 relative to the title to both Land Court and Regular system property.

BY-LAWS

Regulations, rules, or laws adopted by an association or corporation for its management and operation. Such By-laws must set forth the manner of selection of the Board of Directors, the association's duties and obligations and the requirements for calling meetings, which govern the activities of the project. Approval of at least 75% of the apartment owners is required to modify or amend the condominium By-laws. Any modification or amendment must be set forth in an amendment to the declaration which amendment is duly recorded at the Bureau of Conveyances.

CERTIFICATE OF TITLE

A statement of opinion on the status of the title to a parcel of real property, based upon an examination of specified public records. A Certificate of Title does not guarantee title but does certify title as of the date of the Certificate is issued, on the basis of an examination of public records available. The Certificate of Title does not offer protection against "off-record" matters such as undisclosed liens, rights of parties in possession, and matters of survey and location. Nor, does it protect against "hidden defects" in the records themselves, such as fraud, forgery, lack of competency, or lack of delivery.

CERTIFICATE OF TITLE - LAND COURT

The Certificate of Title is an owner's evidence of ownership issued by the State of Hawaii for Land Court Property. It takes affect from the date of the transcription of the decree (see Final Decree/Decree). This transcription is the Original Certificate of Title. The Certificate of Title also shows that the owner holds it free from all encumbrances except those noted on it and certain statutory encumbrances. An owner desiring to convey in full his registered land or any portion there of, shall execute a deed of conveyance. Upon presentation to the Assistant Registrar at the Bureau of Conveyances, a new Certificate of Title is issued in the name of the new owner called the Transfer Certificate of Title. All Certificates are numbered.

CHAIN OF TITLE

A term applied to the past series of transactions and documents affecting the title to a particular parcel of land.

CHATTEL

Personal property, such as household goods or fixtures, machinery, etc.

CLOUD ON TITLE

Any document, claim, unreleased lien or encumbrance which may impair or injure the title to property or make the title doubtful because of its apparent or possible validity. Clouds on title are usually revealed by the title search, and may be removed from the record by a quitclaim deed or a quiet title proceeding. While the cloud remains, the owner is usually prevented from conveying a marketable title. An example of a cloud on title is as follows: where a property is sold without the wife releasing her dower interest.

CO-TENANCY

A form of concurrent property ownership in which two or more persons own an undivided interest in the same property.

CODICIL

A supplement or addition to a will which normally does not revoke the entire will. A codicil must be executed with the same formalities as a will and be witnessed by two disinterested persons.

COLOR OR TITLE

A condition which has the appearance of good title, but which in fact is not valid, as where title is founded on some written document which on its face appears valid and effective, but which is actually invalid. In Hawaii, a possessor of property under Color of Title must also be in good faith in order to acquire by adverse possession. That is, he must believe his deed is really valid even though it is actually defective.

COMMERCIAL LEASE

Written as a tenancy for years with three major types: (1.) Net Lease; (2.)Gross Lease; (3.) Percentage Lease.

COMMISSIONER

A person appointed by a court to supervise a mortgage or other type of foreclosure sale.

COMMON ELEMENTS

Parts of the property which are necessary or convenient to the existence,maintenance and safety of the condominium, or are normally in common used by all of the condominium residents. All condominium owners have an undivided ownership interest in the common elements. Maintenance of the common elements is paid for by the condominium association, and each owner must pay a monthly maintenance assessment, prorated according to his individual common interest. Typical examples of common elements are elevators, load bearing walls, hallways, swimming pool and driveways.

COMMON EXPENSE

The operating expenses of a condominium of property, together with all other sums designated as common expenses by or pursuant to the Declaration, or the By-Laws.

COMMON INTEREST

The percentage of undivided ownership in the common elements belonging to each condominium apartment, as established in the condominium declaration. The applicable percentage is usually computed as the ratio of the square footage of the building, or as the ratio of the apartment's purchase price to the total sales price of all the apartment units. The percentage of common interest determines an owner's interest in the common elements, the amount the owner will be assessed for maintenance and operation of the common properties, the real estate tax levied against an individual unit, and the number of votes an owner has in the condominium association.

CONDEMNATION

Either a judicial or administrative proceeding to exercise the power of eminent domain, i.e., the power of the government to take private property for public use. In the taking of private property for public use, a fee simple estate or any lesser right, such as an easement, may be acquired. Private property may be taken without the consent of the owner, whose only judicial complaints may be that the land was not taken for a sufficient public use, or, that just compensation was not paid.

CONDOMINIUM ASSOCIATION

An association of the owners of a condominium, usually in an unincorporated association form, whose main purpose is to control, regulate and maintain the common elements in the condominium.

CONDOMINIUM MAP

The detailed site plan containing the layout, location, unit numbers and dimensions of the condominium units, which is filed for recordation at the Bureau of Conveyances when the declaration is recorded.

CONDOMINIUM OWNERSHIP

An estate in real property consisting of an individual interest in an apartment unit and an undivided common interest in the common areas such as the land. Each condominium unit is a statutory entity which may be mortgaged, taxed, sold or otherwise transferred in ownership, separately and independently of all other units in the structure.

CONDOMINIUM PROPERTY REGIME (CPR)

The name given to the laws pertaining to condominiums in the State of Hawaii and designated the "Condominium Property Act", permitting ownership of a specified horizontal layer of air space as opposed to the traditional method of vertical ownership of property from earth below to the sky above. In a condominium, the horizontal planes appear as the floor and ceiling and the vertical planes appear as the walls.

CONSIDERATION

That which is given in exchange for something from another. Consideration is usually something of value, such as the purchase price in money, though it may be personal services or exchanged property. There should be a recital of consideration in a deed, as presumptive evidence that something of value was given for the realty.

CONVEY

The act of deeding or transferring title to another.

CONVEYANCE

An instrument by which an interest in real property is transferred.

COOPERATIVE OWNERSHIP

Cooperative ownership of an apartment unit means that the apartment owner has purchased shares in a corporation which holds title to the entire apartment building. The cooperative owner is, in essence, a shareholder in a corporation whose principal asset is a building. In return for his stock in the corporation, the owner receives a proprietary lease entitling him to occupy a specific unit in the building. He thus occupies but does not own his unit. He must pay his prorated share of the corporation's expenses, which include mortgage charges, real estate taxes, maintenance, payroll and the like. The owner can deduct for tax purposes his share of the taxes and interest charged.

CORPORATION

An artificial person or legal entity, created under state law, consisting of an association of individuals, but regarded in law as having an existence and personality separate and distinct from such individuals. The main characteristics of a corporation are: (1) perpetual existence, that is, the corporation exists indefinitely and only ceases to exist when and if it is properly dissolved through legal proceedings; (2) centralized management in the Board of Directors; (3) liability of a shareholder limited to the amount of his investment; (4) free transferability of shares. A corporation has independent capacity to contract and to hold title to real property consistent with the powers given it in its articles of incorporation. It is important to verify that the articles have been filed and the corporation has in fact been legally formed, otherwise a deed is invalid for lack of grantee.

COVENANT

A written agreement or promise of two or more parties by which either pledges to perform or not to perform specified acts on a property, or which specifies certain uses or non use of the property. Breach of a covenant gives rise to a claim for damages.

COVENANT AND CONDITIONS

Covenants are promises contained in contracts or documents, the breach of which would entitle a person to damages. Conditions, on the other hand, are contingencies, qualifications or occurrences upon which an estate or property right would be gained or lost. Because it is a limitation only and does not create an obligation, failure of the condition to occur will not entitle either party to damages against the other party. A condition, upon its occurrence or happening, may mean a loss of a right or an estate may be terminated.

CROWN LANDS

On March 8, 1848 King Kamehameha III divided the lands reserved unto himself in the Great Mahele into two parts. One part he retained for himself, his heirs and assigns; the other part he set aside to the government. This action of the King was approved by the Legislature on June 7, 1848. The lands retained by the King were first known as the King's Lands. On January 1, 1865, these lands were placed in the jurisdiction of the Commissioner of Crown Lands. Thereafter, these lands became known as Crown Lands.

DECLARATION

The legal document which the developer of a condominium must file with the Real Estate Commission and record at the Bureau of Conveyances in order to create a condominium under the Horizontal Property Act.

DECLARATION OF RESTRICTIONS

A statement of all the covenants, conditions and restrictions ("CC&R'S") which affect a parcel of land. They usually aim at a general plan of development and require all lot owners to comply with certain building standards. Once recorded, these restrictions in the Declaration run with the land, and bind all future lot owners. Any owner can enforce the restrictions against an owner who violates any of the restrictions.

DECREE/FINAL DECREE

Land Court decrees operate on the land, vest and establish the title there to as delineated in the decrees. The decree consists of:1. Application number and confirms owner of registered title.2. Description of said property.3. Confirmation of registration of property and encumbrances affecting the same.On entry of the decree, a certified copy is sent to the Assistant Registrar of the Land Court who transcribes it into a book called the Registration Book. This transcription is the Original Certificate of Title. At this time, a map is also sent to become part of the record to accurately describe the property being registered.

DEFICIENCY JUDGMENT

A judgment against a borrower, endorser or guarantor for the balance of the debt issued when the security for a loan is insufficient to satisfy the debt. A deficiency occurs when the foreclosure sale of a property produces less than the amount needed to pay the costs and expenses of the action and to satisfy the obligations secured by the foreclosed mortgage. For such deficiency, a personal judgment is entered against the original mortgagor. This judgment operates as a lien on the judgment debtor's assets and is enforceable and collectable in the same manner as any judgment at law.

DEMISE

A conveyance of an estate or interest in real property to another for years, for life, or at will - most commonly for years, as in a lease. A lease often refers to the "demised" premises. The use of the word demise often implies a covenant of quiet enjoyment by which the lessor undertakes to guarantee that the lessee will not be disturbed in his use of the premises by superior claims of others.

DESCRIPTION

The portion of a conveyance document which defines the property being transferred. Documents such as deeds, assignments of lease and mortgages must contain a full legal description of the property to be valid.

DEVISE

A transfer of real property under a will. The donor is the devisor and the recipient is the devisee. Where there is no will, the real property "descends" to the heirs.

DOMINANT ESTATE

The estate which is said to attach to and derive benefit from the servient estate in reference to an easement appurtenant, as where an easement road passes over an owner's land (the servient estate) to give access to an adjacent parcel (the dominant estate). The dominant estate usually adjoins the servient estate. The land receiving the benefit of an easement.

DOWER

The legal right or interest a wife acquires in the property her husband held or acquired anytime during marriage. During the husband's life, the dower is an expectant or inchoate interest which does not ripen into a legal estate (called consummate dower) until the husband's death. Dower attaches to lands to which the husband, during the marriage, is seized " in feesimple, in freehold, or in leasehold". The parties must be validly married, and in this regard, Hawaii does not recognize common law marriages. Upon the death of the husband, the wife is entitled to a life estate in 1/3 of all the lands owned by her husband at any time during the marriage, in fee simple, or in leasehold. She is entitled to an absolute interest in 1/3 of all the remaining personal property owned by him at the date of his death, after payment of all just debts. Note the following: The wife loses her dower in Land Court land if she fails to have the TCT amended to reflect the marriage; dower does not attach to the interest of property the husband holds in joint tenancy; a wife cannot convey her dower interest to a third party; a husband cannot release his wife's dower interest by acting as her attorney-in-fact.

EASEMENT

A property interest which one person has in land owned by another entitling the holder of the interest to limited use or enjoyment of the other's land. Easements are either appurtenant or in gross.

EGRESS

A way to exit from a property.

EMINENT DOMAIN

The right of the government, both state and federal to take private property for a necessary public use, with just compensation paid to the owner. The state may delegate the power of Eminent Domain to local governments and to public corporations and associations such as school districts. No private property is exempt from this exercise of governmental power.

ENCROACHMENT

An unauthorized invasion or intrusion of a fixture or other real property wholly or partly upon another's property, thus reducing the size and value of the invaded property. An encroachment is a "trespass" if it encroaches on the land, and a "nuisance" if it violates the neighbor's air space, such as the overhanging branches of a tree. An accurate land survey will disclose most encroachments, and is usually required by lenders and buyers of any substantial parcel of real property. Encroachments are not normally revealed in the chain of title, and thus, are not warranted against in a Certificate of Title.

ENCUMBER

To burden a parcel of land with a lien or charge such as a mortgage, tax lien or easement.

ENCUMBRANCE

Any claim. lien, charge or liability attached to and binding real property which may lessen the value of the property but will not necessarily prevent transfer of title.

ESTATE

The decree, quantity, nature and extent of ownership interest which a person has in real property. To be an estate, an interest must be one that is (or may become) possessory, and whose ownership is measured in terms of duration. Also, an estate can be the property owned by a decedent and which may be subject to federal and state tax probate administration.

EXCEPTION

As used in a conveyance of real property, an exception is the exclusion from the conveyance of some part of the property granted. The title to that with drawn part remains in the grantor by virtue of his original title.

EXECUTOR

A person appointed by a testator to carry out the directions and requests in his last will and testament, and to dispose of his property according to the provisions of the will. A female executor is called an executrix. The executor is entitled to possession and control of the testator's real estate pending determination of heirs and distribution of the property.

FEDERAL TAX LIEN

A federal lien which attaches to real property either if the federal estate tax is not paid, or if the taxpayer has violated the federal income tax or payroll tax laws.

FEE SIMPLE

The largest estate one can possess in real property. A fee simple estate is the least limited interest and the most complete and absolute ownership inland. It is of indefinite duration, freely transferable and inheritable. The phrase "fee simple absolute" came about because the estate is of potentially infinite duration (thus "fee"); there are no limitations on its inheritability (thus "simple"); and it is indefeasible and cannot be divested (thus "absolute").

FINANCING STATEMENT

A brief document (required under the Uniform Commercial Code - UCC) filed at the Bureau of Conveyances to perfect or establish a creditor's security interest in a chattel. It is important in real estate to protect the creditor's interest in personal property which is security for a debt, but which becomes a fixture when attached to realty. When filed, the Financing Statement is effective for 5 years from the date of filing and lapses upon expiration of that period unless extended by a Continuation Statement filed any time within the six-month period proceeding the expiration of the 5 year period.

FORECLOSURE

A legal procedure whereby property used as security for a debt is sold to satisfy the debt in the event of default in payment of the mortgage note or default of other terms in the mortgage document. The foreclosure procedure brings the rights of all parties to a conclusion, and the title in the mortgaged property to either the holder of the mortgage or a third party purchasing the realty at the foreclosure sale, free of all encumbrances affecting the property subsequent to the foreclosed mortgage.

FREEHOLD

An estate in real property, the exact termination date of which is unknown. Freehold estates may be categorized as "estates of inheritance", such as fee simple and lesser "estates of life" which extend only for the life of an individual.

GENERAL LIEN

A right of a creditor to have all of the debtor's property sold to satisfy a debt. Unlike a specific lien against certain property, a general lien is directed against the individual debtor and attaches to all of his property.

GOVERNMENT LAND

This term, as distinguished from Crown Lands and Konohiki Lands, refers to those lands set apart to the Government by King Kamehameha III on March 8,1848, which action of the King was confirmed by the Legislature on June 7,1848.

GROUND LEASE

A lease of land alone, sometimes secured by improvements placed upon the land. The ground lease is a means used to separate the ownership of land from the ownership of the buildings and improvements constructed on the land. In Hawaii, it is a lease creating a tenancy for years, typically for a term of 55 years.

GUARDIAN

One who is given the lawful custody and care of another (called a ward). The ward might be a minor, an insane person or a spendthrift. The guardian may upon court approval sell the ward's property, if it is in the best interest of the ward. The grantee would receive valid title under a guardian's deed. A "Guardian Ad Litem" is one appointed by a court to bring or defend a legal action on behalf of his ward.

HEIR

A person who inherits under a will or a person who succeeds to property by the laws of descent if the decedent dies without a will.

ILI

Land next in size to the ahupuaa.

INDEMNITY

Security against loss or damage. To indemnify is to compensate for incurred loss or damage.

INGRESS

The way into a property.

INTESTATE

To die without a valid will. The decedent's property passes to his heirs according to the priorities set forth under the laws of descent.

JOINT TENANCY

A form of property ownership by two or more persons in which the joint tenants have one and the same interest, arising by one of the same conveyance, commencing at one and the same time and held by one and the same possession (the concept of the "four unities"). A distinctive feature of the joint tenancy is the right of survivorship by which the surviving joint tenant(s) succeeds to the interest of the deceased joint tenant. No probate proceedings are necessary.

JOINT VENTURE

A partnership formed by two or more persons having as members one or more general partners and one or more limited partners. The limited partners are not bound by the general obligations of the partnership since they are limited in their liability up to the amount of their investment (similar to shareholders in a corporation). The management and operation of the partnership business is under the exclusive control of the general partners;in fact, the limited partners can lose the limited liability by participating to any degree in the management of the partnership.

JUDGMENT

The formal decision of a court upon the respective rights and claims of the parties to an action or suit. In Hawaii, a judgment includes a decree and any order from which an appeal lies. After a judgment has been entered and re-corded in the Bureau of Conveyances it becomes a general lien on the property of the defendant.

JUDGMENT LIEN

A lien binding on all the real estate of a judgment debtor and giving the holder of the judgment a right to levy (to seize) the land for satisfaction of his judgment. Any Circuit Court or District Court judgment shall be alien upon the real property when a certified copy of the judgment is recorded in the Bureau of Conveyances. A judgment lien is effective for 10 years.

LAND

The surface of the earth extending down to the center and upward to the sky, including all natural things thereon such as trees, crops or water; plus the minerals below the surface and the air rights above.

LAND COMMISSION

The common name of the Board of Commissioners To Quiet Land Titles, established by the Act of December 10, 1845. It was composed of 5 commissioners whose duties were to investigate and decide upon all the claims of private individuals to any land acquired prior to the passage of the act. If a majority of the 5 commissioners approved a claim, a Land Commission Award was issued. Thereafter, the awardee paid a commutation tax and was issued a Patent on the Award. The Land Commission was dissolved as of March 31, 1855.

LAND COMMISSION AWARD

This was the award of the Land Commission, which confirmed the claim of an individual to a parcel of land. For a claim to be confirmed, it required the approval of a majority of the members of the board. Land Commission Awards are the foundation of some private land titles in Hawaii.

LAND COURT APPLICATION/CONSOLIDATION INDEX

An index by Application/Consolidation number showing:

1. Applicant's name
2. Original Certificate of Title number
3. Application number
4. Transfer Certificate of Title (TCT) number on which Land Court Order (LCO) has been endorsed
5. Map numbers
6. Description of what transpired on each map
7. Land Court approval date
8. Land Court Order number that created such map

LAND COURT CONSOLIDATION

An owner of two or more contiguous or adjacent lots covered by two or more separate Land Court Applications may combine them by filing a petition which is called a Land Court Consolidation. All Land Court Consolidations are numbered consecutively.

LAND COURT DOCUMENT

Documents affecting the land after a decree is issued. Such documents must be registered in the Land Court System in order to affect any change in ownership or to encumber any registered interest.

LAND COURT ORDER

A notice of change in title or description of registered land. Any change in land description, i.e. subdivision, accretion, consolidation, restriction of access, designation of easement or setback line, must be accompanied by a map showing the changes. These maps are numbered consecutively within any given application.

LAND PATENT

A Patent that was issued upon payment of commutation to the government by the awardee of a Land Commission Award. Such Land Patent on the Award conveyed no title, but merely indicated that the government's interest in the land had been settled. This document was issued after the overthrow of the monarchy.

LAND PATENT GRANT

This document was issued by the government of the Hawaiian Islands for those government lands that had been sold after the overthrow of the monarchy.

LEASE

A lease is both a contract between lessor (landlord) and lessee (tenant)and a conveyance or demise of the premises by the lessor to the lessee. A lease is a contract in that it embodies the agreement between the parties.

The main elements of a lease contract are:

1. the names of the lessor and lessee;
2. an agreement to let and an agreement to take the premises;
3. a statement of the permitted use of the property;
4. description of the premises;
5. the beginning date and duration of the term and
6. the payment of rent. The lease is also a conveyance in that the agreement involves the creation of an estate in land, that is, the right to possession and use for a period of time.

LEASEHOLD

A less than freehold estate which a tenant possesses in real property. In a lease situation, the tenant possesses a leasehold and the landlord possesses the reversion estate; i.e. when the lease terminates, the property will revert to the landlord.

LEGAL DESCRIPTION

A description that is complete enough that an independent surveyor could locate and identify a specific piece of real property. A legal description is required on all deeds, leases, assignment of leases and mortgages and issued in most agreements of sale. Street addresses, tax bill descriptions(TMK) and general descriptions are inadequate to use in recorded title documents since many years hence the streets may not exist and obvious difficulties would arise for someone searching the chain of title or trying to locate the property. Under Hawaii's condominium law, however, a post office address description is sufficient in a deed or master lease since the legal description has been included in the recorded declaration.

LIEN

A charge or claim which one person (as with a tax lien or) has upon the property of another (lienee) as security for a debt or obligation. Liens can be created by agreement of the parties (as with a mortgage) or by operation of law (a swith a tax lien). They may be general (thus affecting all the debtor's property, as in a judgment lien) or specific (thus affecting only a particular property, as in a mortgage given on one piece of property). Liens can be statutory or equitable, voluntary, or involuntary. For example, a mechanics lien is an involuntary, statutory, special lien, where as a mortgage is a voluntary, equitable, special lien.

LIFE ESTATE

Any estate in real or personal property which is limited in duration to the life of its owner or some other designated person. Although classified as a freehold estate (since it is a possessory estate of indefinite duration), a life estate is not an estate of inheritance. A life estate is terminated by the death of the person whose existence is the measuring life. No probate proceeding is necessary to establish title in the remainder man. If the life tenant acquires the Fee simple title to the property, the life estate is terminated by merger.

LIMITED COMMON ELEMENTS

That special class of common elements in a condominium reserved for the use of certain apartment(s) to the exclusion of other apartments. This would include assigned parking stalls, storage units, or any common areas and facilities available for use of more than one but less than all unit owners.

LIMITED PARTNERSHIP

A partnership formed by two or more persons having as members one or more general partners and one or more limited partners. The limited partners are not bound by the general obligations of the partnership since they are limited in their liability up to the amount of their investment (similar to shareholders in a corporation). The management and operation of the partnership business is under the exclusive control of the general partners; in fact, the limited partners can lose the limited liability by participating to any degree in the management of the partnership.

LIS PENDENS

A legal document recorded in the Bureau of Conveyances, which gives constructive notice that an action as been filed in either a state or federal court affecting a particular piece of property. "Lis Pendens" is a Latin term which means "action pending" and is in the nature of a quasi-lien. A notice of Lis Pendens is not the same as placing a lien on or attaching real property. It is only notice of a pending action involving title or possession of real property.

MARKETABLE TITLE

Good or clear title reasonably free from risk of litigation over possible defects. Marketable title need not, however, be perfect title. Rather it is a title not subject to such reasonable doubt as would create a just apprehension of invalidity in the mind of a person of reasonable prudence and intelligence.

MECHANIC'S LIEN

A statutory lien created in favor of material men and mechanics to secure payment for materials supplied and services rendered in the improvement, repair or maintenance of real property.

METES AND BOUNDS

A common method of land description that identifies a property by specifying the shape and boundary dimensions of the parcel, using terminal points an dangles. A metes and bounds description starts at a well-marked point of beginning and follows the boundaries of the land by courses and metes (measures, distances and compass direction) and bounds (landmarks, monuments) and returns to the true point of beginning.

NOTARY PUBLIC

A public officer whose function is to administer oaths; to attest and certify documents by his signature and official seal, giving them credit and authenticity; to take acknowledgments of deeds and other conveyances.

OPTION

An agreement to keep open, over a set period, an offer to sell or purchase property. The option must be supported by its own actual consideration, separate and independent from the purchase price of the property. A mere recital of consideration alone is not sufficient except in a lease option situation, in which the provisions of the lease are themselves sufficient consideration to support the option. The option must contain all the essential terms of the underlying contract of sale so that a complete binding contract is created immediately upon the optionee's election to exercise his right to purchase or sell. If the optionee elects not to exercise the option, the option or keeps the option money and neither party is obligated to perform. Since "time is of the essence" in an option agreement, the option automatically expires if not exercised prior to the termination date. An option is not an interest in land and therefore not capable of comprising the security for a mortgage.

OWNER'S CERTIFICATE OF TITLE

When property is registered in the Land Court system, the original Certificate of Title is recorded in the Bureau of Conveyances by the Assistant Registrar. The property cannot be transferred without a notation of this transfer being made on the Certificate, also called the "Transfer Certificate of Title" or TCT.

PARCEL

A specific portion of a larger tract; a lot. A parcel is indicated on a Hawaii tax map by tax key number, and includes the name of the owner or owners, area dimensions, title, and lot number. In a tax map key number such as 4-5-019-072, the "72" represents the parcel number and is usually double underlined on the tax map.

PARTNERSHIP

An association of two or more persons to carry on as co-owners a business for profit (as defined in the Uniform Partnership Act). Hawaii is the firsts state to expressly include joint ventures as partnerships. The major change in Hawaii partnership law is that now a partnership can hold title to real property in the name of the partnership. Prior to this time, many partnerships vested the title to a property in a trustee of a land trust so as to avoid problems with the wives of the partners claiming a dower interest in the partnership property.

PERSONAL PROPERTY

Things that are tangible and movable; property that is not classified as real property; chattels; personality. Title to personal property is transferred by way of a bill of sale, as contrasted with a deed for real property.

PLAT

A map of a town, section, or subdivision indicating the location and boundaries of individual properties. In a tax map key number description such as 4-5-019-072, the "019" represents the plat.

POINT OF BEGINNING

The starting point in a metes and bounds description of property which is usually a street intersection or a specific monument. To effectively complete a legal description of a property, the description must always return to the point of beginning, in order to enclose the described area.

POWER OF ATTORNEY

A written instrument authorizing a person (the attorney-in-fact) to act as the agent on behalf of another to the extent indicated in the instrument.

PROBATE

The formal judicial proceeding to prove or confirm the validity of a will. The will is presented to the probate court, and creditors and interested parties are notified to present their claims or to show cause why provisions of the will should not be enforced by the court. Title to real property vests in the heirs or devisee, without the need for any court order, usually upon proof of the validity of the will. Even if the decedent dies without a will, his estate is still subject to a probate action. The court determines the rightful heirs, pays legal claims of creditors, and appoints an administrator to distribute the real and personal property according to the court's decree.

PROPERTY

The rights or interests a person has in the thing he owns; not in the technical sense, the thing itself. These rights include the right to possess, to use, to encumber, to transfer and to exclude, commonly called the "bundle of rights." Property is either real or personal.

PROPRIETARY LEASE

A written lease in a cooperative apartment building, between the owner-corporation and the tenant-stockholder, in which the tenant is given the right to occupy a particular unit. In Hawaii, the cooperative form of ownership has been replaced in popularity by the condominium.

QUIET ENJOYMENT

The right of a new owner or lessee legally in possession to uninterrupted use of the property without interference from the former owner, lessor or any third party claiming superior title.

QUIET TITLE ACTION

A circuit court action intended to establish or settle the title to a particular property, especially where there is a cloud on the title. All parties with a possible claim or interest in the property must be joined in the action. A quiet title action is frequently used by an adverse possessor to substantiate his title since official record title makes it easier to convey the property. Once the judgment or decree of the court has been recorded in the Bureau of Conveyances, proper record notice of the claimant's right and interest in the property is established.

REAL ESTATE

The physical land and appurtenances, including any structures; for all practical purposes synonymous with real property.

REAL PROPERTY

All land and appurtenances to land, including buildings, structures, fixtures, fences, and improvements erected upon or affixed to the same; excluding, however, growing crops. The term "real property" refers to the interests, benefits and rights inherent in the ownership of real estate, i.e., the "bundle of rights."

RECORDING

The act of entering into the book of public records the written instruments affecting the title to real property, such as deeds, mortgages, contracts of sale, options, assignments, and the like.

REGISTERED LAND

Land that is registered in Land Court.

REGISTRAR AT THE LAND COURT

The Judge of the Land Court appoints a Registrar and Assistant(s) as may be allowed by law. The Registrar has jurisdiction over all applications for the registration of title to land within the State of Hawaii and order spending. The Registrar of Conveyances at the Bureau of Conveyances and his Deputy are Assistant Registrars to carry out the necessary duties of recording and registration of documents affecting title The Judge of the Land Court appoints a Registrar for the Land Court and registered property.

REGISTRAR OF THE BUREAU OF CONVEYANCES

The Registrar of Conveyances is appointed by the Board of Land and Natural Resources, and upon his appointment automatically becomes the Assistant Registrar of the Land Court. The Registrar thus has the duty to maintain accurate official records of all deeds, mortgages, agreements of sale and other instruments relating to real estate titles filed for recordation in either the regular system or the Land Court.

REGULAR SYSTEM

A system of recordation of documents affecting land not registered in the Land Court system; also known as the "unregistered system."

RESERVATION

The creation, in behalf of the grantor, of a new right issuing out of the thing granted. A reservation thus is something which did not exist as an independent right before the conveyance.

RESTRICTIONS

Limitations on the use of property. Private restrictions are created by means of restrictive covenants written into real property instruments, such as deeds and leases. Public restrictions are created by means of zoning and ordinances; unlike private restrictions, they must tend to promote the public health, welfare and safety.

RESTRICTIVE COVENANT

A private agreement, usually contained in a deed, which restricts the use and occupancy of real property. Such a covenant is said to run with the land and binds all subsequent purchasers, their heirs and assigns; and normally covers such things as lot size, building lines, type of architecture, and uses to which the property may be put.

RIGHT OF SURVIVORSHIP

The distinctive characteristic of a joint tenancy (also a tenancy by the entirety) by which the surviving joint tenant(s) succeeds to all right, title and interest of the deceased joint tenant without the need for probate proceedings.

RIGHT-OF-WAY

The right or privilege, acquired through accepted usage or by contract, to pass over a designated portion of the property of another. A right-of-way may be either private, as in an access easement given a neighbor, or public, as in the right of the public to use the highways or to have safe access to public beaches.

RUNNING WITH THE LAND

Rights or covenants which bind or benefit successive owners of a property are said to "run with the land," such as restrictive building covenants in a recorded deed which would affect all future owners of the property. Also, an easement appurtenant runs with the land and thus passes to a succeeding owner even if it is not specified in the deed.

SERVIENT ESTATE

Land on which an easement exists in favor of an another property (called a dominate estate); also referred to as a servient tenement. If property "A"has a right of way across property "B", property "B" is the servient estate.

SHORELAND

The dividing line between private land and public beach on beachfront property.

SPECIAL LIEN

A lien or charge against a specific parcel of property, such as a mortgage, attachment or mechanic's lien.

SUBLEASE

A lease given by a lessee for a portion of the leasehold interest but retaining some reversionary interest in the lessee. The sublease may be for all or part of the premises, for the whole term or for part of it. Leases normally contain a clause prohibiting subletting without prior consent of the lessor. The lessee remains directly liable to the lessor for the rent. The sublessee does not have a contractual obligation to pay rent to the original lessor.

TAX LIEN

A general statutory lien imposed against real property for failure to pay taxes. There are federal tax liens and state tax liens. The state tax lien for unpaid real property taxes has priority over all other liens on the property, regardless of whether all such liens were recorded prior to the recording of the state tax lien.

TAX MAPS

Maps drawn to scale showing location of real property, tax keys, size, shape and dimensions, etc., for convenience of identification, valuation and assessment. These maps are kept in tax map books, prepared by the Department of Taxation.

TENANCY BY THE ENTIRETY

A special joint tenancy between a lawfully married husband and wife or recipical benefeciaries, which places title to the property into the unit, with both tenants having an equal, undivided interest in the whole property. Upon the death of one tenant, the survivor succeeds to the entire property to the exclusion of heirs and creditors of the deceased tenant and without the need for probate. A tenancy by the entirety differs from a joint tenancy in that neither spouse can convey his or her interest or force a partition during the lifetime of the other, without the consent of the other spouse. It can only be severed by mutual agreement, divorce, serving the recipical beneficiary relationship or joint conveyance.

TENANCY IN COMMON

A form of concurrent ownership of property between two or more persons, in which each has an undivided interest in the whole property. Each co-tenant is entitled to the undivided possession of the property, according to his proportionate share and subject to the rights of possession of the other tenants. Their interests may be equal (as in joint tenancy) or unequal. Where the conveyance document does not specify the extent of interest of each co-tenant, there is a presumption that the shares are equal. There is no rights of survivorship. Any tenant in common can sell his interest in the property without the consent of his co-tenants.

TENANCY IN SEVERALTY

Ownership of property vested in one person alone, and not held jointly with another, also called Several Tenancy or Sole Tenancy. When the sole owner dies the property is probated and passes to his heirs or devisee.

TENANT

One who holds or possesses property. Commonly used to refer to a lessee under a lease.

TITLE

The right to or ownership of land, also, the evidence of ownership. The title to property encompasses all that bundle of rights an owner possesses, the totality of rights and property possessed by a person. Title may be held individually, jointly or in corporate or partnership form.

TITLE INSURANCE

Insurance against loss or damage resulting from defects or failure of title to a particular parcel of real property. Under the contract of indemnity the title company agrees to reimburse the insured for any loss he sustains if title is not as represented in the policy.

TITLE SEARCH

An examination of the public records to determine what, if any, defects there are in the chain of title. The title search is usually performed by an experienced title company.

TORRENS SYSTEM

A legal system for the registration of land used to verify the ownership of land and to establish the status of the title, including ownership and encumbrances. The purpose of the Torrens Act pertaining to registration of title to land is to establish an indefeasible title free from all rights of claims not registered with the Registrar to the end that anyone may deal with such property with assurance that the only rights or claims of which he need take notice are those so registered. The Torrens System in Hawaii is designated as the "Land Court System".

TRANSFER CERTIFICATE OF TITLE

A duplicate Land Court Certificate of Title. Under the Land Court system of registration of title to property, the court issues an original Certificate of Title to the owner once he has established his rightful title to the property. The original Certificate is then recorded. When the original owner sells the property, the original Certificate is then canceled and the Registrar issues as new Certificate to the grantee, referred to as a transfer Certificate of Title.

TRUST

An arrangement where by legal title to property is transferred by the grantor(or settle or) to a third person called a trustee, to be held and managed by the person for the benefit of another called a beneficiary. The beneficiary holds equitable title.

UNDIVIDED INTEREST

That interest a co-owner has in property which gives him a right to possession of the whole property along with the other co-owners. The undivided interest may be equal, or unequal. No owner has the right to any specific part of the whole.

VENDEE

The purchaser of realty; the buyer. The buyer under an agreement of sale.

VENDOR

The seller of realty. The seller under an agreement of sale.

VEST

To own or indicate ownership of lands. "Title may be said to 'vest' in John Brown."

VESTEE

A non-legal term coined by title insurers and used by them to indicate the owner of real property.

WARRANTY

An agreement and assurance by the grantor of real property for himself and his heirs, to the effect that he is the owner and will defend the title given.

WILL

A written instrument disposing of property upon the death of the maker (the testator). A will takes effect only upon the testator's death, not during his life, and thus can be revoked or amended at anytime during the estator's life.