Rights and Duties of Co-Tenants
Partition in kind:
Partition by sale:
(Note: although all co-tenancies except a tenancy by the entirety can exist between three or more tenants, for the sake of simplicity, we will confine our discussion to cases involving two co-tenants. However all these rules apply equally to cases involving three or more co-tenants.)
Co-tenants have certain rights in the property that is owned by a co-tenancy. These rights can be broken down into three categories: possession, rent and partition.
As we discussed earlier in the chapter, each co-tenant in any real property is entitled to possess and enjoy the entire property unless the conveyance that creates the interest or an agreement between the parties dictates otherwise. This is true even in a tenancy-in-common where one party owns more than a one-half interest in the property.
Despite this sharing of the right to possession, the parties can agree to give one co-tenant exclusive possession of the property for a period of time. This can even be done in a joint tenancy and allowing one joint tenant exclusive possession of the property for a period of time does not destroy the joint tenancy. For example:
Opie and Anthony own Pinkacre as joint tenants. Since Anthony is moving to Madagascar, he and Opie agree that Opie will retain full possession of Pinkacre in exchange for Opie paying Anthony $1,000 per month. During the period of this arrangement, only Opie has the right to possess Pinkacre. In fact, if Anthony were to come back and move on to the property, Opie could have him evicted, because Opie has the full and exclusive right to possess Pinkacre by agreement of the parties. Nevertheless, there is still a joint tenancy between Opie and Anthony.
As a corollary to the right of possession, each co-tenant has the right to not be “ousted” by the other party. “Ouster” occurs when one party physically prevents the other party from gaining or remaining in possession in the property. If one co-tenant “ousts” the other co-tenant, the victim of the ouster can sue for wrongful ejectment. For example:
Opie and Anthony own Pinkacre as joint tenants. One day, Opie gets really mad at Anthony and he has all the locks on Pinkacre changed and he refuses to give Anthony a key. Opie has “ousted” Anthony and Anthony may sue Opie for wrongful ejectment.
Since each co-tenant has an equal right to possess the co-tenancy, exclusive possession by one co-tenant is generally valid. Therefore, the general rule is that if one co-tenant is in exclusive possession of the property because the other co-tenant voluntarily allows him or her to possess the property alone, then the co-tenant who is in possession does not have to pay rent to the other co-tenant. However, if one tenant “ousts” the other co-tenant, then the tenant who committed the ouster must pay the fair market rental value for the property for the duration of time that he or she remained on the property as a result of the ouster. See
In a minority of jurisdictions, however, a co-tenant in exclusive possession of the co-tenancy must pay the other co-tenant his or her share of the reasonable rent, even if he or she did not oust the other co-tenant. For example:
- Yogi and Booboo own Jellyacre as tenants-in-common. Yogi goes on a yearlong trip to research the intelligence level of the average bear. During that time, Booboo lives on Jellyacre. Under the majority rule, Booboo does not have to pay Yogi any rent for the time that he lived alone on the property. However, under the minority rule, Booboo would have to pay Yogi half the fair market value of the rental for Jellyacre for the whole year, since Yogi has the right to possess Jellyacre with Booboo and he allowed Booboo to possess the entire property.
- Yogi and Booboo own Jellyacre as tenants-in-common. One day, Booboo concludes that Yogi is not as smart as the average bear and so he decides that he can no longer live with Yogi. Therefore, he throws Yogi out of Jellyacre and has the locks changed. By the time Yogi can sue for ejectment and get a court order allowing him back on Jellyacre, four months have passed. In all jurisdictions, Yogi could recover one-half the fair market value of the rent for the four months that Booboo lived alone on Jellyacre.
Any tenant-in-common or joint tenant may demand at any time that the property be partitioned and split among the tenants. [Keep in mind that a tenant by the entirety (one of the spouses) cannot demand a partition because an interest can only be transferred with the consent of both parties. The only ways out of a tenancy by the entirety are divorce, death of a spouse and possibly mortgage foreclosure (to be discussed in the mortgages section).]
If the parties cannot agree on how to partition the property, either party may bring a partition action in court and the court will then decide on the fairest way to split the property. Partition can be done by:
- Partition in kind: This refers to physical division of the property. This is generally the preferred method of partition.
- Partition by sale: The court will force a sale of the property and split the proceeds among the tenants if partition in kind is impossible or extremely impractical or if the physical partition is not in the best interest of all of the tenants. In such a case, the court can force a sale of the property and split the proceeds, or one of the co-tenants can buy out the other co-tenant(s).
Although partition in kind is generally the preferred method of partition, most partitions are actually done by sale. The reason for this is that, in today’s society, most parcels of land are not capable of efficient physical partition. A private residence, for example, is obviously not suited for physical division. The same is true with most office buildings etc. The most likely candidates for physical partition are farms and other rural or undeveloped land. For example:
- Fred and Barney are tenants-in-common in Stoneacre. Stoneacre is a 40 acre farmland. One day, they get into a fight over who can pursue Wilma and Fred at once demands partition. When Barney doesn’t agree, Fred brings a partition action. The court will most likely order a partition in kind and split the property physically in a manner that is fairest to all parties.
- Fred and Barney are tenants-in-common in Houseacre. Houseacre is a half-acre lot with a residence on it. One day, they get into a fight over who can pursue Wilma and Fred at once demands partition. When Barney doesn’t agree, Fred brings a partition action. The court will most likely order a partition by sale. The court can have either Fred or Barney buy out the other or it can order the house sold to a third party and split the proceeds among Fred and Barney based on their ownership interests in the tenancy.
- Fred and Barney are tenants-in-common in Whiteacre. Whiteacre is a large, open area that is currently used as a farm. However, Whiteacre is in an area that is being commercially developed. Fred wants to build a shopping mall on Whiteacre, but Barney refuses. So, Fred brings a partition action and demands a partition by sale so that he can buy out Barney’s share and build the shopping mall. Barney, on the other hand, wants partition in kind because he wants to continue his farming operation. Since partition in kind is the preferred method of partition and since Barney has a strong interest in not allowing a partition by sale, the court will most likely not allow a partition by sale. Instead, it will most likely order a partition in kind. See
Delfino v. Vealencis, 181 Conn. 533 (1980).
In addition to the rights enumerated above, the co-tenants each have certain duties in the co-tenancy. Among these duties are the duties to contribute equally to mortgage payments if both parties took out a mortgage on the property, to pay their fair share of any property taxes that are due on the property and to contribute their fair share toward necessary repairs to the property. Essentially, each co-tenant has the responsibility to contribute his or her fair share toward all the expenses that come up in the course of every day life that relate to the property.
However, no co-tenant has the duty to improve the property. In fact, since people can disagree over what constitutes an improvement, one co-tenant may not make a major change to a property without first getting the permission of the other co-tenants. This is true even if that change would increase the value of the property.