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Carr v. Deking

    Brief Fact Summary. In a tenancy in common, one co-tenant makes a lease with a third party, unknown to and against the wishes of the co-tenant.

    Synopsis of Rule of Law. In a tenancy in common, a cotenant may lease his interest in the common property to a third party without the consent of the other tenants.

    Facts. Joel Carr (Plaintiff) and his father George Carr owned a parcel of land as tenants in common. They leased the land to Richard Deking (Defendant) on a year-to-year oral agreement over several years. One year, Plaintiff informed Defendant that he wanted cash rent, but Defendant did not agree. Defendant and George Carr entered into a ten- year lease, unknown to Plaintiff. Plaintiff never consented to the lease and did not authorize his father to act on his behalf. Plaintiff informed Defendant that his lease had expired, but Defendant claimed possession through the lease with George Carr. Plaintiff seeks to eject Defendant; Defendant seeks partition.

    Issue. In a tenancy in common, can one co-tenant enter into a lease with respect to his own undivided one-half interest in the property without the consent of the other co-tenant?

    Held. Yes.
    Each tenant in common of real property may use, benefit, and possess the whole property, subject only to the equal rights of the co-tenants. A co-tenant may lease his own interest in the common property to a third party without the consent of the other tenant, even if the co-tenant does not join in the lease. The nonjoining cotenant is not bound by the lease. The third party becomes a tenant in common with the other co-tenant for the duration of the lease. The nonjoining tenant may not demand exclusive possession against the lessee; he may only demand co-possession.
    Here, Plaintiff may not eject Defendant from the property because the lease is valid. Partition is the proper remedy.

    Discussion. Co-owners of real property have the right to lease the land without the knowledge or consent of the other co-owners. When co-owners cannot agree on the use of the property, the court may order a partition, which is a division of the land.


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