[Cite as Evans v. Willis, 2014-Ohio-1822.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
ANNE M. EVANS : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13-CA-120 : NANCY WILLIS, ET AL. : : : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 12 CV 00782
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 22, 2014
APPEARANCES:
For Plaintiff-Appellant: For Defendants-Appellees:
DAVID Q. WIGGINTON No Appearance Schaller, Campbell and Untied P.O. Box 309 32 North Park Place Newark, OH 43058 Licking County, Case No.13-CA-120 2
Delaney, J.
{¶1} Plaintiff-Appellant Anne M. Evans appeals the judgments of the Licking
County Court of Common Pleas denying her request for access to 190 North Main
Street, Johnstown, Licking County, Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Anne M. Evans is the daughter of Mildred A. Ashbrook
and William A. Ashbrook, Jr. William A. Ashbrook, Jr. passed away. The Last Will and
Testament of William A. Ashbrook, Jr. made a conditional bequest to Anne M. Evans
and her siblings of real property that included a parcel located at 190 North Main Street.
In order to comply with the conditional bequest, on February 17, 1993, Evans and her
siblings entered into a “Life Lease Determinable (Subject to Divestment) / Fulfillment of
Condition for Conditional Bequest(s).”
{¶3} The Life Lease stated that, “Mildred A. Ashbrook shall have the right to
remain in the 190 North Main Street, Johnstown, Licking County, Ohio, premises as
LESSEE thereof, but with no rental being payable by her while she remains in the home
and continues to make her home. * * * She shall have the right so to do and the duty so
to do for the rest of her life, or, in the event that she should choose to decide that she no
longer desires to make same her home, she may terminate the same with reasonable
notice to LESSOR in writing * * *.” The Life Lease named Anne M. Evans and her
siblings as the “lessor.” The Life Lease named Mildred A. Ashbrook as the “lessee.”
{¶4} On June 6, 2012, Evans filed a complaint for partition of the three parcels
bequeathed to Evans and her siblings by their father. Through a settlement of the
issues, Evans and her sister purchased the parcel of property located at 190 North Main Licking County, Case No.13-CA-120 3
Street. Evans filed a pro se motion to enter the premises located at 190 North Main
Street occupied by her mother, Mildred Ashbrook. Mildred Ashbrook would not allow
Evans access to the property. Evans argued she was entitled to access to the home as
the lessor so that she could take an inventory of the home.
{¶5} On October 7, 2013, the trial court denied Evans’s motion for access to
the 190 North Main Street. The trial court stated the terms of the Life Lease were silent
as to access to the home, thereby giving the life lease holder the right to limit access to
the home. The trial court reiterated its judgment as to the issue of access through
judgment entries filed on November 7, 2013 and December 9, 2013.
{¶6} It is from these judgments Evans now appeals.
ASSIGNMENT OF ERROR
{¶7} Evans raises one Assignment of Error:
{¶8} “THE TRIAL COURT ERRED WHEN IT FOUND THAT THE TERMS OF
THE LIFE LEASE WILL DICTATE PLAINTIFF’S ACCESS TO THE PREMISES; THE
OHIO REVISED CODE PROVIDES AN UNWAIVABLE RIGHT TO ACCESS.”
ANALYSIS
{¶9} The instant case comes to us on the accelerated calendar. App.R. 11.1
governs accelerated-calendar cases and states in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall be
sufficient compliance with App.R. 12(A) for the statement of the reason for
the court's decision as to each error to be in brief and conclusionary form. Licking County, Case No.13-CA-120 4
The decision may be by judgment entry in which case it will not be
published in any form.
{¶10} One of the most important purposes of the accelerated calendar is to
enable an appellate court to render a brief and conclusory decision more quickly than in
a case on the regular calendar where the briefs, facts, and legal issues are more
complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463
N.E.2d 655 (10th Dist.1983).
{¶11} This appeal will be considered with the above in mind.
I.
{¶12} Evans argues the trial court erred when it denied Evans the right to access
the property located at 190 North Main Street. It is Evans’s contention that the Ohio
Landlord Tenant Act codified in Chapter 5321 governs the terms of the Life Lease and
provides Evans as landlord the right of reasonable access to the premises. We
disagree.
{¶13} R.C. 5321.05(B) states that a tenant who is party to a rental agreement
shall not unreasonably withhold consent for the landlord to enter into the dwelling unit in
order to inspect the premises. The issue in this case is whether the Life Lease is a
rental agreement, subject to the requirements of R.C. 5321.01 et seq.? Alternatively, is
the Life Lease a life estate to which Ohio Tenant Landlord Law is not applicable?
{¶14} R.C. 5321.01(D) defines a “rental agreement” as, “any agreement or
lease, written or oral, which establishes or modifies the terms, conditions, rules, or any
other provisions concerning the use and occupancy of residential premises by one of
the parties.” Licking County, Case No.13-CA-120 5
{¶15} A life estate terminates at the death of the tenant. The “fee is vested in the
remainderman and not in the life tenant, and the remainder does not pass to the
remainderman as an estate of inheritance from and through the life tenant, but rather
the remainderman takes from the grantor or devisor directly as an estate by purchase
from the death of the life tenant.” In re Fleckenstein, 12th Dist. Warren Nos. CA97-05-
048, CA97-07-075, 1998 WL 27235, *5 (Jan. 26 1998) citing In re Jones’ Estate, 64
N.E.2d 609 (1943). This court defined a life estate in Bush v. Bush, 5th Dist. Muskingum
No. 87-28, 1988 WL 42481, *2 (Apr. 27, 1988):
A life estate is a freehold estate which is held by the tenant for his own
life. See, Lape v. Lape (1920), 22 ONP NS 392. The life tenant is entitled
to full use and possession of the property subject to the limitation that the
estate of those are to follow in possession not be permanently diminished
in value by his/her neglecting to do that which an orderly prudent person
would do in the preservation of his own property, or by doing those things
which are not necessary to the full enjoyment of the particular estate and
which have the effect of permanently diminishing the value of the future
estate. See Johnson v. Johnson (1894), 51 Ohio St. 446.
{¶16} R.C. 2105.20 provides for forfeiture of a life estate as follows:
A tenant for life in real property who commits or suffers waste thereto shall
forfeit that part of the property, to which such waste is committed or
suffered, to the person having the immediate estate in reversion or
remainder and such tenant will be liable in damages to such person for
the waste committed or suffered thereto. Licking County, Case No.13-CA-120 6
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[Cite as Evans v. Willis, 2014-Ohio-1822.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
ANNE M. EVANS : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13-CA-120 : NANCY WILLIS, ET AL. : : : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 12 CV 00782
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 22, 2014
APPEARANCES:
For Plaintiff-Appellant: For Defendants-Appellees:
DAVID Q. WIGGINTON No Appearance Schaller, Campbell and Untied P.O. Box 309 32 North Park Place Newark, OH 43058 Licking County, Case No.13-CA-120 2
Delaney, J.
{¶1} Plaintiff-Appellant Anne M. Evans appeals the judgments of the Licking
County Court of Common Pleas denying her request for access to 190 North Main
Street, Johnstown, Licking County, Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Anne M. Evans is the daughter of Mildred A. Ashbrook
and William A. Ashbrook, Jr. William A. Ashbrook, Jr. passed away. The Last Will and
Testament of William A. Ashbrook, Jr. made a conditional bequest to Anne M. Evans
and her siblings of real property that included a parcel located at 190 North Main Street.
In order to comply with the conditional bequest, on February 17, 1993, Evans and her
siblings entered into a “Life Lease Determinable (Subject to Divestment) / Fulfillment of
Condition for Conditional Bequest(s).”
{¶3} The Life Lease stated that, “Mildred A. Ashbrook shall have the right to
remain in the 190 North Main Street, Johnstown, Licking County, Ohio, premises as
LESSEE thereof, but with no rental being payable by her while she remains in the home
and continues to make her home. * * * She shall have the right so to do and the duty so
to do for the rest of her life, or, in the event that she should choose to decide that she no
longer desires to make same her home, she may terminate the same with reasonable
notice to LESSOR in writing * * *.” The Life Lease named Anne M. Evans and her
siblings as the “lessor.” The Life Lease named Mildred A. Ashbrook as the “lessee.”
{¶4} On June 6, 2012, Evans filed a complaint for partition of the three parcels
bequeathed to Evans and her siblings by their father. Through a settlement of the
issues, Evans and her sister purchased the parcel of property located at 190 North Main Licking County, Case No.13-CA-120 3
Street. Evans filed a pro se motion to enter the premises located at 190 North Main
Street occupied by her mother, Mildred Ashbrook. Mildred Ashbrook would not allow
Evans access to the property. Evans argued she was entitled to access to the home as
the lessor so that she could take an inventory of the home.
{¶5} On October 7, 2013, the trial court denied Evans’s motion for access to
the 190 North Main Street. The trial court stated the terms of the Life Lease were silent
as to access to the home, thereby giving the life lease holder the right to limit access to
the home. The trial court reiterated its judgment as to the issue of access through
judgment entries filed on November 7, 2013 and December 9, 2013.
{¶6} It is from these judgments Evans now appeals.
ASSIGNMENT OF ERROR
{¶7} Evans raises one Assignment of Error:
{¶8} “THE TRIAL COURT ERRED WHEN IT FOUND THAT THE TERMS OF
THE LIFE LEASE WILL DICTATE PLAINTIFF’S ACCESS TO THE PREMISES; THE
OHIO REVISED CODE PROVIDES AN UNWAIVABLE RIGHT TO ACCESS.”
ANALYSIS
{¶9} The instant case comes to us on the accelerated calendar. App.R. 11.1
governs accelerated-calendar cases and states in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall be
sufficient compliance with App.R. 12(A) for the statement of the reason for
the court's decision as to each error to be in brief and conclusionary form. Licking County, Case No.13-CA-120 4
The decision may be by judgment entry in which case it will not be
published in any form.
{¶10} One of the most important purposes of the accelerated calendar is to
enable an appellate court to render a brief and conclusory decision more quickly than in
a case on the regular calendar where the briefs, facts, and legal issues are more
complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463
N.E.2d 655 (10th Dist.1983).
{¶11} This appeal will be considered with the above in mind.
I.
{¶12} Evans argues the trial court erred when it denied Evans the right to access
the property located at 190 North Main Street. It is Evans’s contention that the Ohio
Landlord Tenant Act codified in Chapter 5321 governs the terms of the Life Lease and
provides Evans as landlord the right of reasonable access to the premises. We
disagree.
{¶13} R.C. 5321.05(B) states that a tenant who is party to a rental agreement
shall not unreasonably withhold consent for the landlord to enter into the dwelling unit in
order to inspect the premises. The issue in this case is whether the Life Lease is a
rental agreement, subject to the requirements of R.C. 5321.01 et seq.? Alternatively, is
the Life Lease a life estate to which Ohio Tenant Landlord Law is not applicable?
{¶14} R.C. 5321.01(D) defines a “rental agreement” as, “any agreement or
lease, written or oral, which establishes or modifies the terms, conditions, rules, or any
other provisions concerning the use and occupancy of residential premises by one of
the parties.” Licking County, Case No.13-CA-120 5
{¶15} A life estate terminates at the death of the tenant. The “fee is vested in the
remainderman and not in the life tenant, and the remainder does not pass to the
remainderman as an estate of inheritance from and through the life tenant, but rather
the remainderman takes from the grantor or devisor directly as an estate by purchase
from the death of the life tenant.” In re Fleckenstein, 12th Dist. Warren Nos. CA97-05-
048, CA97-07-075, 1998 WL 27235, *5 (Jan. 26 1998) citing In re Jones’ Estate, 64
N.E.2d 609 (1943). This court defined a life estate in Bush v. Bush, 5th Dist. Muskingum
No. 87-28, 1988 WL 42481, *2 (Apr. 27, 1988):
A life estate is a freehold estate which is held by the tenant for his own
life. See, Lape v. Lape (1920), 22 ONP NS 392. The life tenant is entitled
to full use and possession of the property subject to the limitation that the
estate of those are to follow in possession not be permanently diminished
in value by his/her neglecting to do that which an orderly prudent person
would do in the preservation of his own property, or by doing those things
which are not necessary to the full enjoyment of the particular estate and
which have the effect of permanently diminishing the value of the future
estate. See Johnson v. Johnson (1894), 51 Ohio St. 446.
{¶16} R.C. 2105.20 provides for forfeiture of a life estate as follows:
A tenant for life in real property who commits or suffers waste thereto shall
forfeit that part of the property, to which such waste is committed or
suffered, to the person having the immediate estate in reversion or
remainder and such tenant will be liable in damages to such person for
the waste committed or suffered thereto. Licking County, Case No.13-CA-120 6
{¶17} A review of the facts of this case demonstrates that the Life Lease is not a
rental agreement as defined by R.C. 5321.01. The Life Lease formalizes a life estate in
190 North Main Street held by the life tenant, Mildred A. Ashbrook. The Life Lease was
created based on a conditional bequest of property by William A. Ashbrook, Jr. to his
children in his last will and testament. The Life Lease gives Mildred A. Ashbrook the
right to live at 190 North Main Street for the rest of her life. The Life Lease contains
terms that states the life tenant shall not commit waste:
If LESSEE performs the undertakings of LESSEE to be kept and
performed according to the provisions and conditions hereof, she shall
peaceably and quietly hold, occupy and enjoy said premises during the
term hereof without any hindrance or molestation by LESSOR, their heirs,
devisees, successor or assigns. LESSEE shall, of course, continue as she
always has to use said premises in a careful, safe, and proper manner
solely for her residential dwelling and for no other purpose; LESSEE shall,
of course, especially not use the same in any manner whatsoever, which
will be unlawful, and shall not commit waste therein. LESSEE, of course,
agrees to indemnify and hold harmless LESSOR from any and all loss
occasioned by LESSEE’S use of said premises for any illegal purpose.
This is similar language to that found in R.C. 2105.20.
{¶18} Evans argues by the use of the terms of “lessor” and “lessee,” the Life
Lease was intended to be a rental agreement pursuant to R.C. 5321.01. We find the
words “lessor” and “lessee” are terms of art, such as the use of “life tenant” or “tenants
in common.” The words define the owners’ interest in real property. Licking County, Case No.13-CA-120 7
{¶19} Based on the facts presented, we find the Life Lease is not a rental
agreement, but rather a life estate, and the requirements of Ohio Tenant Landlord Law
do not apply. The trial court was correct in its interpretation of the Life Lease and the life
tenant’s ability to control access to the property is defined pursuant to the terms of the
Life Lease.
{¶20} The sole Assignment of Error of Plaintiff-Appellant Anne M. Evans is
overruled.
CONCLUSION
{¶21} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN