## Facts

- Before the marriage, the husband owned and built a residence on approximately four and one-half acres that later served as the marital home for about ten years.
- In the dissolution judgment, the wife received an undivided one-half interest in the home as alimony, creating a tenancy in common; the judgment did not award possession to either party or direct sale or disposition.
- After the divorce, the wife moved out of state and did not live in the home; the husband remained in sole possession.
- During his occupancy, the husband paid carrying costs and other expenditures for the property, including taxes, insurance, and maintenance or improvements.
- Years later, the wife sued for partition and sought one-half of the home’s fair rental value for the period of the husband’s post-dissolution occupancy.
- The husband counterclaimed for contribution for one-half of his expenditures and asserted the wife was not excluded, he did not deny access, and he did not hold adversely to her interest.
- The trial court awarded the wife one-half of the fair rental value for the relevant period and awarded the husband one-half of the taxes and insurance premiums he paid.
- The district court affirmed on a theory that the husband’s exclusive use and control, coupled with maintenance and repairs, constituted constructive ouster in this former-marital-home setting.
- The Florida Supreme Court reviewed due to conflict with prior Florida decisions concerning cotenancy, ouster, and rental-value claims.

## Issues

1. Whether partition rules governing a cotenant’s liability for rental value should differ when the cotenants are former spouses and the property is the former marital home.
2. Whether a cotenant out of possession may recover rental value from a cotenant in possession absent proof of ouster or adverse possession.
3. How claims for contribution for taxes, insurance, maintenance, and improvements should be accounted for in relation to any rental-value claim in a partition action.

## Decision

- The Florida Supreme Court quashed the district court’s decision.
- The Court held that former spouses who hold property as tenants in common are subject to the same partition and cotenancy rules as other cotenants.
- The Court rejected a rule that exclusive occupancy and control of a former marital home, without more, establishes constructive ouster.
- The Court held that absent proof of ouster or adverse possession (hostile holding), the occupying cotenant is not liable to the non-occupying cotenant for rental value.
- The Court recognized that, in equitable accounting, reasonable rental value may be used as a setoff against an occupying cotenant’s claim for contribution for maintenance or improvement expenses.

## Legal Principles

- Partition actions between former spouses who are cotenants are governed by ordinary common-law cotenancy rules; marital status does not alter the governing standards.
- A cotenant in possession generally owes no rent to a cotenant out of possession unless the possessor ousted the other cotenant or held the property adversely to the other’s interest.
- Exclusive occupancy, control, and payment of expenses, without denial of the other cotenant’s rights, does not by itself constitute ouster.
- In partition accounting, equity may permit the non-occupying cotenant to set off reasonable rental value against the occupying cotenant’s claim for contribution for maintenance or improvement expenditures.

## Conclusion

The Florida Supreme Court held that a non-occupying former spouse cannot recover rental value in partition absent proof of ouster or adverse possession, while allowing equitable setoff of reasonable rental value against the occupying cotenant’s claims for contribution for property expenses.


Barrow v. Barrow, 527 So. 2d 1373 (Fla. 1988)