Summary
In a partition action between former spouses, the Florida Supreme Court held that the common law ouster rule applies uniformly: a cotenant in exclusive possession is not liable for rental value to a cotenant out of possession unless the possessor communicates an adverse claim or ouster, and mere exclusive occupancy after divorce does not constitute ouster. The court rejected a special exception for former spouses based on presumed hostility. However, when a cotenant in possession seeks contribution for improvement or preservation expenses, the cotenant out of possession may offset that claim with the reasonable rental value of the occupant’s use exceeding his or her proportionate share.
Topics
Practice areas
Questions Presented
- Whether, in a partition action between former spouses who are cotenants, the common law rule requiring communication of adverse holding or ouster before a cotenant in exclusive possession is liable for rental value must be applied differently than for other cotenants.
- Whether a cotenant out of possession may assert a claim for reasonable rental value of the property as an offset against the cotenant in possession's claim for improvement or preservation expenses.
Holdings
- The rules of law governing partition are the same for former spouses as for other cotenants; a cotenant in exclusive possession is not liable for rental value to a cotenant out of possession absent communication of adverse holding or ouster. The possession of a tenant in common is presumed to be the possession of all cotenants until the one in possession communicates to the other the knowledge that he or she claims the exclusive right or title, and there can be no adverse holding or ouster unless communicated.
- When a cotenant in possession seeks contribution for amounts expended in the improvement or preservation of the property, the cotenant out of possession may offset that claim with the reasonable rental value of the use of the property by the cotenant in possession to the extent it has exceeded the possessor's proportionate share of ownership.
Key quotations
“I personally would think that the law should have something to do with making a demand for it, but perhaps if the cases do not, they do not.” (at 1374)
“The possession of a tenant in common is presumed to be the possession of all cotenants until the one in possession brings home to the other the knowledge that he claims the exclusive right or title.... There can be no holding adversely or ouster or its equivalent, by one cotenant unless such holding is manifested or communicated to the other.” (at 1375)
“In cases like this there frequently exists an aura of hostility and awkwardness not necessarily common to cotenancy of lands or other properties held for commercial purposes. While neither of the parties contended that he or she was ousted from possession, it is unrealistic to believe that parties who could not get along living together while they were married would be expected to enjoy common usage of the former marital home after their divorce.” (at 1375)
“We hold: (1) the possession of a tenant in common is presumed to be the possession of all tenants until the one in possession communicates to the other the knowledge that he or she claims the exclusive right or title and there can be no holding adversely or ouster by the cotenant in possession unless the adverse holding is communicated to the other; (2) where one cotenant has exclusive possession of lands and uses the lands for his or her own benefit and does not receive rents or profits therefrom, such a cotenant is not liable or accountable to the cotenant out of possession unless he or she holds adversely or as a result of ouster or its equivalent; and (3) when a cotenant in possession seeks contribution for amounts expended in the improvement or preservation of the property, that claim may be offset by cotenants out of possession by the reasonable rental value of the use of the property by the cotenant in possession to the extent it has exceeded his or her proportionate share of ownership.” (at 1377)
Factual background
Prior to marriage, James Barrow owned and built a residence on 4.5 acres; it was the marital home for ten years. The dissolution judgment awarded Donna Barrow an undivided one-half interest as alimony without addressing possession or sale. Donna moved to Idaho immediately after separation; James remained in the home, changed locks, got a new phone number, and declined to respond to her letters. Donna later brought a partition action. James counterclaimed for half of taxes, insurance, and maintenance costs. Donna sought half the fair rental value for the period of his exclusive occupancy.
Procedural history
Trial court, bound by Adkins v. Edwards, awarded ex-wife rental value for ex-husband's exclusive occupancy of the former marital home and awarded ex-husband contribution for taxes and insurance. The Second District Court of Appeal affirmed per Adkins but certified conflict with Vandergrift. The Florida Supreme Court granted review to resolve conflict.
Remand instructions
Direct the Second District Court of Appeal to remand to the trial court for further proceedings consistent with the opinion, limiting Donna Barrow's claim for rental value to an offset against James Barrow's claim for maintenance expenses.