Can an ousted cotenant recover possession of the property? (Civ. Code § 843)

Underwood-Blog-Images-2-300x300Yes. Co-owners of property are entitled to certain rights, namely, the right to possess and use the property as they see fit. But sometimes, things do not work out with the other owners. 

Heirs to an estate can bicker, business relationships can fall through, and family dynamics can fall apart. This may result in the rightful owner of the property being ousted by the other(s). In these situations, finding the right real estate lawyer to assist in the process of recovering possession is crucial. The Underwood Law Firm, P.C. is familiar with these sensitive matters and has the legal acumen to help you recover possession of your property. 

Do cotenants each have a right to occupy their property?

Yes. When co-owners purchase property together and become joint tenants or tenants in common, they are entitled to certain rights regarding the property. Each owner is entitled to lease the property out and collect rent, encumber their interest in the property with a lien, and develop the property as they see fit. 

The most important right among co-owners, however, is the right to possess and occupy the property. “Each tenant in common equally is entitled to share in possession of the entire property, and neither may exclude the other from any part of it. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548.) It is the fundamental rule that each cotenant has a right to occupy the whole of the property. (Jacobs v. Scobie (1939) 12 Cal.2d 618, 623.)

This general rule of a right to possession also means that a co-owner also cannot be excluded from the property. No cotenant “is entitled to possession or usage [of property] which excludes for any period of time alike possession by his co-owners. (Krum v. Malloy (1943) 22 Cal.2d 132, 135.) 

For example, “Shawn” and “Julie” purchase a home as joint tenants with a 50/50 ownership split. Both of them are allowed to occupy and use the whole property, despite the 50% ownership. Neither of them is allowed to exclude the other from the home. If they do, then they committed an “ouster.”

What is an Ouster?

In California, an ouster is a wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. (Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612.) 

While the definition is straightforward, there were problems prior to the 80’s with demonstrating that an ouster had actually occurred. “The practical borderline between privileged occupancy of the whole [property] by a single cotenant and unprivileged greedy grabbing… is not crystal clear.” (Id.)

Zaslow is an example of a clear-cut ouster. There, Mr. Zaslow had obtained title to a property by the foreclosure of a street assessment bond. He enjoyed a quiet and peaceful possession of this property for about 9 years. But Mr. Zaslow was low on funds and failed to pay his property taxes.

Because of this, a woman named Kroenert purchased the property at a tax sale. She then sued to quiet title. Had she let the court system work its course, there might not have been an issue. Instead, while Zaslow was out of the house, she entered the property. She proceeded to change the locks on all the doors, posted a “no trespassing” sign at the front of the house, and denied Zaslow re-entry when he returned to the property. 

Because Zaslow and Kroenert were technically cotenants (each had acquired title to the same property), Korenert’s denial of any possession to Zaslow constituted an ouster.

How does an ousted cotenant recover possession?

While Zaslow is a case where an ouster is obvious, more often than not, the proof is not so clear. To resolve these problems, the State Legislature enacted Civil Code section 843, which simplified the process of ouster actions. While the statute does not provide the exclusive means of proving an ouster, it does provide a means of determining an ouster through a formal notice procedure.

The code provides that a tenant who is not in possession may serve a written demand for concurrent possession to the cotenant occupying the property. This demand must reference section 843 and provide a time for concurrent possession to be offered. An ouster is thus established if, within 60 days of service of the demand, the tenant in possession does not offer and provide unconditional concurrent possession of the property to the tenant out of possession. (Civ. Code § 843(b).) 

Failure to follow the procedure set out in the statute can cause serious difficulties. If a supposedly ousted tenant instead goes straight to the court system, they will face a difficult burden of proof. 

The cotenant must show that the ouster “by acts of an adverse character, such as claiming the whole [property] for himself, denying the title of his companion, or refusing to permit him to enter.” (Estate of Hughes, 5 Cal.App.4th at 1615.) The cotenant must demonstrate to the court an unambiguous conduct on behalf of the tenant in possession, manifesting an intent to exclude another cotenant from gaining or sharing possession of the property. 

What legal action follows an ouster?

If a co-owner is the victim of an ouster, they can sue for ejectment. Normally, ejectment or unlawful detainer actions grant the plaintiff the whole property if the court comes down on their side. But because the ousting cotenant also has a right to possess the property, the plaintiff is entitled to be let back into possession with the other tenant. (Noble v. Manatt (1919) 42 Cal.App. 496, 497.)

This result can cause difficulties. If one co-owner actually committed an ouster, the other(s) may not feel comfortable going back to the property, even if a court order says they are entitled to do so. 

In those situations where hostilities run high, a partition action may be the only way for the parties to part ways. A partition action is a court-ordered process where a property owner forces a sale of jointly owned real estate.

How can the Attorneys at Underwood Law Firm, P.C. Assist You?

An ouster is one of the worst things that can happen to a property owner. Overnight, their world can be turned upside-down as a family member or business partner has robbed them of their right. In these situations, emotions run high, and the tenant out of possession may feel confused about what steps they can take to get back their property. 

As each case is unique, property owners in these situations would be well-served to seek experienced counsel familiar with ouster, ejectment, and partition actions. At Underwood Law Firm, P.C., our knowledgeable attorneys are here to help. If you are concerned about recovering your property, seeking to file a partition action following a judgment, or if you just have questions, please do not hesitate to contact our office.

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