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Spiller v. Mackerethp. 369Rule- in the absence of 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.44
Ouster- used in cotenancy cases to describe two distinct fact situations. (1) the beginning of the running of the statute of limitations for adverse possession and(2) the liability of an occupying cotenant for rent to other cotenants• an ouster in an adverse possession case- a claim of absolute ownership and a denial of the cotenancy relationship by the occupying cotenant• an occupying cotenant liable to out of possession cotenants- one in which the occupying cotenant refuses a demand of the other cotenants to be allowed into use and enjoyment of the land, regardless of a claim of absolute ownership.Majority view: When a cotenant is in exclusive possession of concurrently owned property, the majority holds that, unless there has been an ouster, the cotenant in possession does not have to pay a proportionate share of the rental value to the cotenants out of possession.Minority view:that a cotenant in exclusive possession must pay rent to cotenants out of possession even in the absence of ouster.Fiduciary duties: Cotenants are not fiduciaries with respect to each other. Each cotenant is expected to look after his or her interest. Some courts do though based on relation of familial trust. A fiduciary situation is imposed, most commonly, in two situations:1)Where one cotenant buys in concurrently owned property at a mortgage foreclosure or tax sale and then asserts a superior title against cotenants.2)In a situation that involves adverse possession by the cotenant in exclusive possession (adverse possession against cotenants is not easily achieved).Swartzbaugh v. Sampson- p. 373Rules:•an estate in joint tenancy can be severed by destroying one or more of the necessary unities, either by operation of law, by death, by voluntary or certain involuntary acts of joint tenants, or by certain acts or omissions of one joint tenant without the consent of the other.• One joint tenant out of possession cannot recover exclusive possession of the joint property from his cotenant. He can only recover the right to be let into joint possession of the property with his cotenant. He cannot eject his cotenant in possession.• One joint tenant cannot maintain an action against his cotenant for rent for occupancy of the property or for profits derived from his own labor. He may, however, compel the tenant in possession to account for rents collected from third parties. 45
• the act of one joint tenant without express or implied authority from or the consent of his cotenant cannot bind or prejudicially affect the rights of the latterRemedies available for joint co-tenant:a)Partition: of the whole land or the portion leasedb)Ouster: as ousted cotenant (wanted to enter but lessee resisted) can recover reasonable rental value of the leased land in proportion to his or her sharec)Accounting: get the money back from the co-tenant.