Citation. 334 So. 2d 859 (Ala. 1976)
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Cotenants of property held as tenants in common filed complaint seeking sale for division among tenants in common.
Synopsis of Rule of Law.
Ouster necessitating the payment of rent to non-occupying tenants requires that the occupying tenant take action that prevents the use and enjoyment of the property by the non-occupying cotenants.
Facts.
In 1973, Spiller purchased an undivided one half interest in a lot. Spiller’s cotenants were Mackereth and others. At the time Spiller purchased his interest, the lot was being rented to a company. Three months later, Spiller offered to buy out the other tenants, who refused and Spiller then filed an action to force the sale for division. A few months after his suit, the company vacated the lot and Spiller began to use the building on the lot as a warehouse. Mackereth brought a counterclaim to collect rent from Spiller for use of the warehouse. The trial court found that Spiller had ousted Mackereth and awarded rent. In a separate proceeding, the trial court ordered sale of the lot. Spiller appealed.
Issue.
Was the plaintiff’s conduct sufficient to constitute ouster and thus necessitate the payment of rent to cotenants?
Held.
No, judgment affirmed in part, reversed in part, and remanded.
Absent an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property.
Absent an agreement, for a party to prove ouster and obligate the cotenant occupying the property to pay rent, the non-occupying tenants must demonstrate that the non-occupying cotenants were refused use and enjoyment of the land after a demand on the occupying cotenant.
In the instant case, we find that a mere letter requesting rent or to vacate is an insufficient showing of ouster because each cotenant has a right to occupy the entire property and requesting rent is not asserting their right to use and enjoy the land.
Discussion.
The court affirmed the award of attorney’s fees, noting that allowance of attorney’s fees for division is statutory. The discussion of ouster focused on whether the occupying cotenant had actively taken measures to prevent the non-occupying cotenants from asserting their right to use and enjoy the property.
