If you and your siblings end up owning a house together, what can you do? You don’t want to move in together. Probably, your brother or sister moved into the house and refuses to move out. What are your rights? The basic remedy is Partition (which means to either divide the property or to force the sale). There are other remedies available. For example, you could get a court award of back rent and possible attorney fees. Keep reading to learn more …
The concept of partition dates to when most people were farmers. Then it was more common to inherit large tracts of farm land. In that case, if three kids inherited the farm land, they could get the court to divide the land in equal portions. That way, they could each get a chunk of their own land. Nowadays, with most people living in the city, it’s more common to inherit a house or other property. You can’t divide a house like you can land. In such a case, what makes more sense is not to divide the property, but to sell it and divide the proceeds. This is called a Partition by Sale.
Partition by Sale.
In Arizona, a claim of Partition by Sale is grounded on A.R.S. § 12-1211, et seq. “[T]he fundamental objective in a partition action is to divide the property so as to be fair and equitable and confer no unfair advantage on any cotenant.” 59A Am. Jur. 2d Partition § 6. The court starts with the presumption that the parties own equal shares in the Property.See id. § 114. The burden of paying the necessary expenses of jointly owned property is the responsibility of all cotenants. An exception is if one party has excluded the other tenant from having an equal right to possession).See id. § 154; see also20 Am.Jur. 2d Cotenancy & Joint Ownership § 63 (2009).
Each joint owner has a separate interest in jointly held property. See In re Marriage of Berger, 140 Ariz. 156, 165, 680 P.2d 1217, 1226 (App. 1983). So, what do you do if you have property cannot be physically divided? The answer is partition by sale. It is more fair than division in kind of the property.
If a co-owner had prior use of the property, does that person owe rent to the other co-owners? Here’s the rule.
“A tenant in common who does not have actual possession of the property may compel a cotenant in possession to account for rents and profits received from tenants on the premises.” See 59A Am. Jur. 2d Partition § 153. See also 20 Am. Jur. 2d Cotenancy & Joint Ownership §§ 63, (same), 66 (cotenant with exclusive possession does not have right to contribution).
Cox v. Cox
A related case is Cox v. Cox, 138 Idaho 881, 886, 71 P.3d 1028, 1033, (Idaho June 3, 2003), which stated:
Though a settled issue in many states, no Idaho court has decided the issue of whether an ousted co-tenant is entitled to a proportion of the fair rental value of common property.The majority rule is that when one co-tenant excludes another co-tenant from use and possession of common property, the excluding co-tenant is liable for the value of their exclusive use of the property, including rent. Sack v. Tomlin, 110 Nev. 204, 871 P.2d 298, 306 (Nev. 1994); Palmer v. Protrka, 257 Or. 23, 476 P.2d 185, 190 (Or. 1970) (when difficulties in personal relationships between co-tenants make co-occupancy impossible, the excluded co-tenant is entitled to the rental value of their interest in the property); Ireland v. Flanagan, 51 Or. App. 837, 627 P.2d 496, 500 (Or. App. 1981); Maxfield v. Maxfield, 47 Wn. App. 699, 737 P.2d 671, 676 (Wash. Ct. App. 1987)Cummings v. Anderson, 94 Wn.2d 135, 614 P.2d 1283, 1289 (Wash. 1980) (where property is not adaptable to double occupancy, the mere occupation by one co-tenant may operate to exclude the other). This Court adopts this position.
In Northcutt v. McPherson, 81 N.M. 743, 745, 473 P.2d 357, 359 (1970), the court stated that “[t]o constitute ouster there must be some express, open and unequivocal denial of the right to possession of the cotenant . . . .” (Cited by Morga v. Friedlander, 140 Ariz. 206, 208, 680 P.2d 1267, 1269, (Ariz. Ct. App. Apr. 19, 1984).)
The court inYoung v. Young, 37 Md.App. 211, 376 A.2d 1151 (1977), stated it slightly different: “Ouster has been defined as a notorious and unequivocal act by which one co-tenant deprives another of the right to the common and equal possession and enjoyment of the property.” (Also cited by Morga v. Friedlander, 140 Ariz. 206, 208, 680 P.2d 1267, 1269, (Ariz. Ct. App. Apr. 19, 1984).)
But, you may be able to establish an “ouster” even without a clear“express, open and unequivocal denial of the right to possession of the cotenant.”
An Example of Ouster.
For example, the court in Morga found that an ouster had occurred based on the possessing co-tenant claiming “more than his due as a co-tenant.” Morga, 140 Ariz. 206, 208-209, 680 P.2d 1267, 1269-1270, 1984 Ariz. App. LEXIS 414. The Morga court based this on three facts that showed the possessing co-tenant “claimed more than his due as a co-tenant.” Morga, 140 Ariz. 206, 208-209, 680 P.2d 1267, 1269-1270, 1984 Ariz. App. LEXIS 414.
First, that the possessing co-tenant “interfered with [the non-possessing tenant’s] right of entry.” Specifically, the possession co-tenant changed the locks with the intent of excluding the non-possessing tenant.
Second, the possessing co-tenant removed the non-possessing tenant’s name from the office glass front.
Third, the possessing co-tenant interfered with the non-possessing tenant’s right to sublease the common property to the extent of his interest.In my personal experience, a court may find that an ouster occurred (and that rent is due to the non-possessing owner) if the person in possession (a) changed the locks and/or alarm code, and (b) there is some evidence that the possessing co-owner intended to exclude the non-possessing owner.
In plain English.
In other words, if you and your siblings inherit property, and your brother or sister moves into the house and doesn’t let you have equal use to the property, the sibling living in the house can be liable for rent for the time that he/she had use of the house.
The general rule is that the burden of paying the necessary expense of jointly owned property is the responsibility of all co-tenants. See 59A Am.Jur.2d Partition§ 154 (2009); see also 20 Am.Jur.2d Cotenancy & Joint Ownership§ 63 (2009. When one co-owner pays for an obligation owed equally by the other co-owner, he is entitled to recover from the other for his respective share. Brown v. Brown, 58 Ariz. 333, 336, 119 P.2d 938, 939 (1941); see also 59A Am.Jur.2d Partition§ 154 (2009) (“When one cotenant pays more than his or her share, equity imposes on each cotenant the duty to contribute a proportionate share.”)
However, there is an exception to that general rule. A co-tenant’s right of contribution does not exist when the cotenant had exclusive possession and enjoyment of the property.See20 Am. Jur. 2d Cotenancy & Joint Ownership § 66; see alsoIn re Marriage of Maxfield, 47 Wn. App. 699, 737 P.2d 671, 676 (Wash. App. 1987).
The right to compensation for improvements made on jointly owned property without the consent of the cotenants may be awarded when the improvements: “(1) are made in good faith; (2) are of necessary and substantial nature; (3) materially enhance the value of the property; and (4) are such that circumstances show it would be equitable to do so.” 20 Am. Jur. 2d Cotenancy & Joint Ownership § 69; see also 59A Am. Jur.2d Partition § 171 (courts may award a cotenant who makes improvements the resulting increase in value of the property, but not the cost of improvements).
In plain English.
If you and your siblings inherit property, and you move into the house and don’t let the siblings have equal use to the property, but you spend a bunch of money fixing the place up, you can’t expect your siblings to chip in to pay for the improvements.
Reimbursement for Improvements to the Property.
Generally, a co-tenant improving joint tenancy property with separate funds is entitled to reimbursement upon partition of the property.In re Marriage of Berger, 140 Ariz. 156, 161, 680 P.2d 1217, 1222; see also 59 Am.Jur.2d Partition§ 171. The measure of the right to reimbursement for improvements is the resulting increase in value to the property, and not the actual costs of the improvements. Berger, 140 Ariz. at 163, 680 P.2d at 1224; Lawson v. Ridgeway, 72 Ariz. 253, 262, 233 P.2d 459,465 (1951).
The right to compensation for improvements made on jointly owned property without the consent of the cotenants may be awarded when the improvements: “(1) are made in good faith; (2) are of necessary and substantial nature; (3) materially enhance the value of the property; and (4) are such that circumstances show it would be equitable to do so.” 20 Am.Jur.2d Cotenancy & Joint Ownership§ 69; see also 59A Am.Jur.2d Partition§ 171 (courts may award a cotenant who makes improvements the resulting increase in value of the property, but not the cost of improvements).
Attorney Fees and Costs.
The common fund doctrine provides that a person who employs “attorneys for the preservation of a common fund may be entitled to have their attorney’s fees paid out of that fund.”LaBombard v. Samaritan Health Sys., 195 Ariz. 543, 548, ¶ 22, 991 P.2d 246, 251 (App. 1998).
The doctrine (1) ensures fairness to the successful litigant, whose recovery may be consumed by the expenses of litigation; (2) prevents the unjust enrichment of others who benefit in the fund and should share the burden of recovery; and (3) encourages the attorney to diligently litigate a claim by ensuring payment of his or her fees.Id.at 549, ¶ 22, 991 P.2d at 252.
Because the common fund doctrine is a rule of equity, however, it will not be applied if a statute precludes apportionment of attorneys’ fees.Id. (Cited inState ex rel. Raber v. Wang, 230 Ariz. 476, 477-478, 286 P.3d 1085, 1086-1087 (Ariz. Ct. App. Sept. 6, 2012).
In plain English.
If the situation would not get resolved without your taking the initiative to hire a lawyer, at least some of the legal fees can be paid off the top so you aren’t stuck paying them out of your share.
This has been a very brief introduction to the subject of partition. Don’t rely on this article as legal advice. If you have a question, give us a call at 602-443-4888 or contact us here. We have handled numerous Partition by Sale cases, and have a consistently favorable track record.