Ownership of real property - Relations among cotenants

Learning Outcomes

After reading this article, you will be able to explain the legal relationship between cotenants in real property, including their respective rights to possession, entitlement to rents and profits, obligations for expenses and repairs, and remedies for ouster or disputes. You will also be able to apply these principles to MBE-style questions and identify common pitfalls on the exam.

MBE Syllabus

For MBE, you are required to understand the legal rules governing the relationship between cotenants in concurrent ownership of real property. This includes:

  • The right of each cotenant to possess and use the entire property.
  • The entitlement of cotenants to share in rents and profits from third parties.
  • The obligation of cotenants to contribute to necessary expenses, taxes, and repairs.
  • The remedies available for ouster and partition.
  • The rules regarding improvements and liability for waste.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. If one cotenant exclusively occupies the entire property, must that cotenant pay rent to the others?
  2. Which expenses are cotenants generally required to share?
  3. What remedy is available if a cotenant is denied access to the property by another cotenant?
  4. Can a cotenant recover the cost of improvements from other cotenants before partition?

Introduction

When two or more people own real property together, they are called cotenants. The most common forms of concurrent ownership are joint tenancy, tenancy in common, and tenancy by the entirety. This article focuses on the legal relations among cotenants—what rights and duties they owe each other, and what remedies are available if disputes arise.

Key Term: Cotenancy Ownership of real property by two or more persons at the same time, each with an undivided interest in the whole property.

Rights of Possession and Use

Each cotenant has an equal right to possess and use the entire property, regardless of their share. No cotenant may exclude another from any part of the property. This right exists even if the cotenants own unequal shares.

Key Term: Ouster The wrongful exclusion of a cotenant from possession of the property by another cotenant.

Entitlement to Rents and Profits

If the property is rented to a third party, all cotenants are entitled to a share of the rent proportional to their ownership interests. A cotenant in exclusive possession is not required to pay rent to the others unless there has been an ouster.

Worked Example 1.1

Two siblings own a house as tenants in common. One sibling moves out, and the other lives in the house alone for five years. The sibling who moved out demands rent for her share. Is she entitled to rent?

Answer: No. Unless the sibling in possession excluded the other (ouster), she is not required to pay rent for exclusive use. Voluntary absence does not entitle the non-possessing cotenant to rent.

Sharing of Expenses

Cotenants must share necessary expenses for the property, such as mortgage interest, property taxes, and necessary repairs. Each cotenant is responsible for their proportionate share. If one cotenant pays more than their share, they may seek contribution from the others.

Key Term: Contribution The right of a cotenant who pays more than their share of necessary expenses to recover the excess from the other cotenants.

Improvements and Repairs

A cotenant who makes improvements or repairs cannot compel the others to contribute to the cost during the tenancy. However, at partition or sale, the improving cotenant may receive credit for the value added by improvements, or be liable for any decrease in value caused by waste.

Key Term: Waste Conduct by a cotenant that permanently reduces the value of the property, for which other cotenants may seek damages.

Ouster and Remedies

If a cotenant is excluded from the property by another, this is an ouster. The ousted cotenant may sue for possession, seek damages (including fair rental value), or request partition of the property.

Worked Example 1.2

Three friends own a vacation cabin as tenants in common. One changes the locks and tells the others not to return. What remedies are available to the excluded cotenants?

Answer: The excluded cotenants may sue for possession, seek damages for ouster (including fair rental value for the period of exclusion), and may also seek partition of the property.

Partition

Any cotenant has the right to demand partition of the property, either in kind (physical division) or by sale and division of proceeds. Courts prefer partition in kind unless it is impractical.

Worked Example 1.3

A and B own farmland as cotenants. A wants to sell, but B refuses. What can A do?

Answer: A can file an action for partition. The court may order the land divided, or if division is not feasible, order a sale and divide the proceeds.

Improvements and Setoff at Partition

A cotenant who made improvements may receive credit for the increased value at partition, but cannot force other cotenants to pay for the improvements before partition. If the improvement decreased the value, the improving cotenant may be liable for the loss.

Liability for Waste

A cotenant who commits waste (e.g., destroys buildings, removes resources) can be sued for damages by the other cotenants.

Exam Warning

Cotenants in exclusive possession are not required to pay rent to others unless there is an ouster. Simply living alone on the property is not enough—there must be actual exclusion or denial of access.

Revision Tip

Always check for ouster before concluding that a cotenant in possession owes rent to others. Look for facts showing exclusion, denial of access, or a demand to enter that is refused.

Key Point Checklist

This article has covered the following key knowledge points:

  • Each cotenant has the right to possess and use the entire property.
  • Exclusive possession does not require payment of rent unless there is ouster.
  • Cotenants must share necessary expenses, such as taxes and mortgage interest.
  • Contribution is available for necessary expenses, not for improvements.
  • Improvements may be credited or charged at partition, not before.
  • Ouster allows the excluded cotenant to seek possession, damages, or partition.
  • Any cotenant may demand partition at any time.
  • A cotenant committing waste is liable to the others for damages.

Key Terms and Concepts

  • Cotenancy
  • Ouster
  • Contribution
  • Waste
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