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.
Thus, one tenant-in-common may sell, lease, or otherwise dispose of his or her interest in the common property without the consent of the other cotenants and without their joining in the conveyance.View Full Point of Law
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?
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.