Brief Fact Summary. 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.
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.