What is an Ouster?

underwood-what-is-ouster-300x300What is an Ouster (Civ. Code § 843)?

An ouster occurs when one tenant wrongful dispossesses or excludes another cotenant or cotenants from the common property. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548.) Regardless of whether individuals share property as joint tenants or tenants in common, the property rights of cotenants are usually the same regarding possession. (12 Witkin, Summary 11th Real Prop § 41 (2023).) Each cotenant is entitled to share possession of the entire property and cannot be excluded from any part of the property by the other cotenant. (Id.) 

What Does an Ouster Require?

An ouster requires “acts of the most open and notorious character, clearly giving notice … to all having occasion to observe the condition and occupancy of the property, that the intention is to exclude, and does exclude the cotenant.” (Askley v. Bassett (1922) 189 Cal. 625, 642.) In Zaslow v. Kroenert, supra, 29 Cal.2d 541, 548, 176 P.2d 1, the Supreme Court of California further explained that an ouster may be proved by acts of adverse character including one tenant claiming the whole for himself, denying the title of his companion cotenant, or refusing to permit the cotenant from entering the property. The Court in Zaslow concluded that changing the locks on the doors, posting no trespassing signs on the property and denying the cotenant admittance on demand constituted an ouster. (Id., at 548.)

What Statute Governs Ousters?

In 1984, the Legislature enacted Civil Code section 843 in 1984 which permits a cotenant out of possession to make a written demand for concurrent possession of the property. Civil Code section 843 was adopted in response to a recommendation by the California Law Revision Commission (17 Cal. Law Rev. Com. Reports, p. 1023) to institute a statutory procedure to simplify the process of establishing an ouster as it was often difficult to determine when an ouster had occurred. 

Under section 843, an ouster is established if within 60 days after 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, subd. (b).) Once an ouster is established, the excluded cotenant may seek his or her remedies for damages, possession, and/or partition. (Civ. Code, § 843, subd. (c).) Overall, Civil Code section 843 provides an alternative means of determining ouster based upon a formal notice procedure. The statute, however, does not provide the exclusive means of proving an ouster. (Civ. Code, § 843, subd. (a): “This section supplements and does not limit any other means by which an ouster may be established.”)

Can an Ouster Be Proven Without Following Statutory Procedure?

Civil Code section 843 provides a statutory framework for establishing an ouster, but courts still rule on ousters even if the procedures of section 843 are not used. In Estate of Hughes (1992) 5 Cal.App.4th 1607, 1610-1615, the Fourth District Court of Appeal accessed whether or not an ouster occurred when the statutory procedures of Civil Code section 843 were not used. 

In Estate of Hughes, George Hughes obtained a one-third interest in his deceased wife’s home in 1975, while his two children retained the remaining interests in the property. (Id., at 1610.) George remarried with his wife Sylvia where they lived on the property and paid monthly installments on the mortgage, but did not pay additional rent. (Id.) In 1982, George filed a community property petition, alleging that because the residence was community property he was entitled to 100 percent of the property as Kathryn’s surviving spouse, but his petition was rejected. (Id., at 1614.) George died in 1986 and Sylvia continued to living in the home until 1988 and began paying rent in 1987 in compliance with a court order. (Id., at 1610.) George’s children assigned their interests in the property to James Kinder, the plaintiff. (Id.) Kinder sought rental payments from Sylvia from her possession of the home prior to 1987 on the grounds the children were ousted from the home. (Id.) The trial court ruled that Kathryn was not liable to George for rental payments. (Id.)

However, the Fourth District Court of Appeal reversed the trial courts order. (Id.) The Court of Appeal noted that George’s children were not denied access to the property because they never requested physical access to the property while George was in possession after Kathryn died. (Id., at 1614.) However, the Court of Appeal considered the filing of a community property petition as the functional equivalent of changing locks or posting “no trespassing” signs telling a cotenant out of possession that he or she may not enter the premises. (Id., at 1615.) The community property petition was considered to be an effort to seek legal redress to claim entitlement to all the property at the exclusion of the other claimants or cotenants, thus was an ouster. (Id.) 

Generally, a cotenant who is not in possession may only recover the rents and profits from the cotenant in possession when there has been an ouster excluding the cotenant from possession. (Black v. Black (1949) 91 Cal.App.2d 328 [204 P.2d 950].) While the Court of Appeal concluded that George’s community property petition constituted an ouster, the Court of Appeal also concluded that the petition did not necessarily mean that George’s estate and/or Sylvia were liable for the rental accruing from the date the community property petition was filed. (Estate of Hughes, supra, at pp. 1616.) Therefore, the Court of Appeal reversed the trial court’s ordered and remanded to consider George’s defenses against claims for rent arising from the ouster. (Id.)

In 2011, the Third District Court of Appeal also decided the question of whether an ouster was established in a claim of adverse possession in Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128. The Court of Appeal concluded that the tenant in possession was never excluded by the other cotenants from the property as required to establish an ouster. (Id., at 1128.) The tenant in possession never told the cotenants to stay off the property, never put up a fence or barrier prohibiting entry on the property, and never excluded the cotenants from the property. (Id.) The tenant in possession disced the property two or three times a year,  posted a “for sale” sign near the property, and introduced themselves as owners of the property at a meeting. (Id.) However, the Court of Appeal concluded these circumstances did not do not involve the type of open, notorious and unequivocal ouster of cotenants required to establish adverse possession under a claim of right. (Id.)

An Example

“Shawn” and “Julie” were siblings who inherited a beautiful beachfront property in Southern California from their parents. They both co-owned the property as equal tenants in common, which meant they each owned a 50 percent share of the property.

Over time, Shawn and Julie’s relationship started to deteriorate due to personal disagreements over how to use and maintain the property. One day, tensions reached a breaking point when Shawn decided he wanted to sell the property, while Julie wished to keep the house.

Shawn took drastic action and decided to forcibly take control of the property. Shawn moved in, changed the locks, posted no-trespassing signs, and refused to allow Julie access to the property when she requested the doors be unlocked to grant her access.

Julie sued Shawn alleging she was ousted from the property and the court agreed because Shawn was in possession of the property and took adverse steps to exclude Julie from possession when she was entitled to possess the property as a tenant in common.

How Can the Attorneys at Underwood Law Firm Assist You?

Although the circumstances in the cases discussed present different factual circumstances, whether there has been an ouster is a legal question. (Hughes, supra, 5 Cal.App.4th at p. 1612, 7 Cal.Rptr.2d 742.) While Civil Code section 843 establishes a statutory procedure to establish an ouster, the conduct of a cotenant in possession can also be analyzed to establish an ouster. Regardless of the circumstances, establishing an ouster requires proving acts of an adverse character, such as the tenant in possession of the property claiming the whole for himself, denying the title of his companion, or refusing to permit the other cotenant to enter.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548, 176 P.2d 1.)

Ousted cotenants often seek partition as a remedy when restoration of co-possession would lead to hostile relationships between the cotenants. At Underwood Law Firm, P.C., we have extensive experience in partition actions and routinely establish ousters in order to begin partition proceedings. If you are a co-owner of real property in California and are excluded from possession, a partition and court-ordered sale of the property could be the most beneficial remedy after establishing an ouster. Please contact our office for any partition questions. 

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