The opinion
Grady, Judge,
dissenting:
{¶ 173} The trial court committed at least three fundamental errors in its analysis of the issues of law the parties’ claims for relief presented and in the relief the court granted on those claims.
{¶ 174} First, the trial court erred when it applied the common-law rule of fiduciary duty to determine the rights and duties of the parties under the condominium declaration they filed. The Supreme Court has held that the rule of fiduciary duty does not apply to such relationships, which are instead wholly and exclusively determined by the terms of the Ohio Condominium Act, R.C. Chapter 5311. Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274 , 617 N.E.2d 1075 .
{¶ 175} Second, the court erred in applying the rule of fiduciary duty as it did. The rule applies to the dealings of parties in a relationship out of which the duty arises. Crosby v. Beam (1989), 47 Ohio St.3d 105 , 548 N.E.2d 217 ; Gigax v. *161 Repka (1992), 83 Ohio App.3d 615 , 615 N.E.2d 644 . The trial court found that the parties owed each other a fiduciary duty arising from their relationship as partners in managing the operation of their building. The court then misapplied that duty to the parties’ relationship as co-declarants of a condominium, which involves wholly different rights and duties.
{¶ 176} Third, the court erred in holding that DiPasquale may expand his office because he is a declarant. The condominium declaration provides that the declarants are not restricted from acting on their rights during the development period. However, that exemption confers no affirmative rights vis-a-vis the other declarants. Until title to any one of the condominium units is conveyed, the declaration is no more than an inchoate dedication that permits the owner of the fee-simple interest in the real property to make such conveyances. .
{¶ 177} The fee-simple interest in the parcel of real property on which their building is located is held by the parties as tenants in common. Consequently, each owns a complete, though not exclusive, fee-simple interest in the property. Each has a right to possession of the entire property, subject to the equal rights of the others. If a cotenant is kept out of possession by another cotenant, the ousted cotenant may bring an action in ejectment to recover possession. Alternatively, the ousted cotenant may recover the reasonable value of the use and occupation of the land from the cotenant committing the ouster. 20 American Jurisprudence 2d, Cotenance and Joint Ownership (1995), Section 54; 2 American Law of Property (1952), Section 6.13.
{¶ 178} DiPasquale’s proposed expansion of his office space will prevent Costas and Hendrickson from exercising their right of possession with respect to those portions of the real property. Ironically, the trial court’s order requiring DiPasquale to pay them $4,556.60 in compensation is similar to the relief to which Costas and Hendrickson could be entitled in an ejectment action. However, that does not relieve the errors the court committed in arriving at its judgment.
{¶ 179} The errors the court committed had a synergistic effect, leading the court to impose several further requirements concerning the yet-to-be-formed condominium association, which will not come into being unless and until the units are conveyed to one of the parties as a “unit owner.” That prospect appears dim, to say the least.
{¶ 180} I would reverse and vacate the trial court’s judgment for the foregoing reasons.