A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
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.
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.
A person appointed by the court to settle the estate of a person
who has died intestate - that is, leaving no will.
A division of land within the Hawaiian Islands, next in size
to the district. Although often mentioned as the "unit" of land,
the ahupuaa was not a measure of an area, as is the acre, for
the ahupuaa varies in size. It is generally a large parcel of
land extending from the sea to the mountain and bounded by natural
features, such as gulches, streams or ridges. The ideal ahupuaa
extended from the mountain to the sea, thereby enabling the chief
and his followers to obtain fishes and seaweed from the ocean,
raise taro and bananas in the lowlands, and to take forest products
from the mountains. Many of the smaller ahupuaa were divided
into smaller units of land called "ili".
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.
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
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.
The act of witnessing another's signing of an instrument, performed
by a subscribing witness.
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.
To leave personal property to another by will. Bequest is the
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.
The perimeters or limits of a parcel of land as fixed by legal
descriptions which, in Hawaii, is usually a metes and bounds
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.
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.
Personal property, such as household goods or fixtures, machinery,
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.
A form of concurrent property ownership in which two or more
persons own an undivided interest in the same property.
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.
Written as a tenancy for years with three major types: (1.)
Net Lease; (2.)Gross Lease; (3.) Percentage Lease.
A person appointed by a court to supervise a mortgage or other
type of foreclosure sale.
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.
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.
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
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.
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.
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
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.
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 act of deeding or transferring title to another.
An instrument by which an interest in real property is transferred.
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.
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
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
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
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
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.
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.
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.
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
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.
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.
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.
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.
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.
A way to exit from a property.
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.
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.
To burden a parcel of land with a lien or charge such as a mortgage,
tax lien or easement.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
The Great Mahele generally refers to the event of 1848 at which
time King Kamehameha and over 240 of the highest chiefs and Konohikis
came together and settled their undivided interests in the lands
within the islands by means of various quitclaim deeds. Sometimes,
the Great Mahele is considered to include the division of the
lands reserved by King Kamehameha III into Crown and Government
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.
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.
A person who inherits under a will or a person who succeeds
to property by the laws of descent if the decedent dies without
Land next in size to the ahupuaa.
Security against loss or damage. To indemnify is to compensate
for incurred loss or damage.
The way into a property.
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.
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.
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.
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.
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.
Deeds executed by the King in selling portions of the King's
Lands (Crown Lands) prior to the Act of Jan. 1, 1865, which made
such lands inalienable.
The term Konohiki originally referred to an agent, the person
in charge of a tract of land on behalf of the King or a chief.
It is in the later statues that the chiefs or landlords were
referred to as "Konohiki"
The small area of an ahupuaa or ili which the tenants or common
people had improved or cultivated and used for their own purposes,
and to which they substantiated their claims and perfected their
right, securing from the Land Commission an award of title in
fee simple. Today, it generally refers to a tract of land within
a larger tract of 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
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,
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.
A special court established in Honolulu in 1903 to administer
the Torrens System of land registration. The Land Court registers
all documents affecting registered land in Hawaii. Every decree
of registration of absolute title insures the land owner a quiet
title to the registered land, and title to land once registered
cannot be subsequently acquired through adverse possession or
through prescription since the possession of a Land Court Certificate
of Title is deemed to be continuing possession of the land itself.
Presiding judge of the Land Court is designated by the Chief
Justice of the Hawaii Supreme Court and comes from among the
judges of the First Circuit Court.
LAND COURT APPLICATION
In any proceeding to register property in the Land Court System,
it is essential that the parcel of land be accurately described
in the application and on the map accompanying it, and that the
accuracy of the survey be checked by government officials. An
application may include two or more parcels of land in which
the applicant claims the same interests and all parcels must
be within the same judicial district. The applicant must file,along
with the application, a complete Abstract of Title of the land.
Upon approval by appropriate government officials, a final decree
is entered, and an application is created. All applications are
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
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.
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.
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
(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.
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.
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.
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
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.
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.
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.
These were the awards issued by the Minister of the Interior
pursuant to the Act of August 28, 1860 to the chiefs and Konohiki
who had participated in the Great Mahele, but who had failed
to file their claims for land with the Land Commission as required
by the Act of December 10, 1845.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
The physical land and appurtenances, including any structures;
for all practical purposes synonymous with 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."
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.
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.
A system of recordation of documents affecting land not registered
in the Land Court system; also known as the "unregistered system."
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.
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.
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.
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.
A patent that was issued upon payment of commutation to the
awardee of a Land Commission Award. Such Royal Patent on the
Award conveyed no title, but merely indicated that "the government's
interest in the land had been settled.
ROYAL PATENT GRANT
Grants issued by the Kingdom of Hawaii covering sales of government
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.
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.
The dividing line between private land and public beach on beachfront
A lien or charge against a specific parcel of property, such
as a mortgage, attachment or mechanic's lien.
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
A general statutory lien imposed against real property for failure to pay taxes. There are federal tax liens and state tax liens. It is a general lien on all property of the person liable, but its priority depends upon the number of liens previously recorded when the tax lien is recorded in the Bureau of Conveyances. The lien encumbers both Land Court and Regular System properties.
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.
One who holds or possesses property. Commonly used to refer
to a lessee under a lease.
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.
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
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.
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.
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.
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.
The purchaser of realty; the buyer. The buyer under an agreement
The seller of realty. The seller under an agreement of sale.
To own or indicate ownership of lands. "Title may be said to
'vest' in John Brown."
A non-legal term coined by title insurers and used by them
to indicate the owner of real property.
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.
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.