What is an Ouster?

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Co-ownership of property can raise many questions about the rights of each owner to the common property. Conversely, that co-ownership relationship can sour, causing one co-owner to seek the benefits of sole ownership- the right to exclude others- without the detriments of sole ownership- paying the full price for the property. What can result is a co-owner who ejects their co-owner in a way that the law deems an unlawful ouster.

What is an Ouster? Legal Definition

“An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession.”[1]Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548; accord Hacienda Ranch Homes, Inc. v. Superior Ct. (2011) 198 Cal.App. 4th 1122, 1128, as modified on denial of reh’g (Sept. 28, 2011) … Continue reading

“Ouster” is shorthand for a “cotenant’s unambiguous conduct that manifest[s] an intent to exclude another cotenant from gaining or sharing possession of jointly owned property”[2]Estate of Hughes (1992) 5 Cal.App. 4th 1607, or that “bring[s] home or impart[s] notice to the tenant out of possession, by acts of ownership of the most open, notorious, and unequivocal character, that [she] intends to oust the latter of his interest in the common property.”[3]Preciado v. Wilde (2006) 139 Cal.App.4th 321, 322, 325; Johns v. Scobie (1939) 12 Cal.2d 618, 623–624 Ouster may be effected through “a diversity of methods”[4]Carpentier v. Webster (1865) 27 Cal. 524, 561–563, ranging from invoking the statutory notice procedure for ouster[5]California Civil Code § 843 to “claiming the whole for himself, denying the title of his companion, or refusing to permit him to enter.”[6]Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128 (quoting Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548

The Rights of All Co-Owners to Possession of the Property

Many co-owners have trouble understanding their rights to the co-owned property. Perhaps the co-owner in possession claims that they are entitled to full possession, and that they can exclude the other co-owner(s) by claiming that they lost their rights to the property by moving out, which is a myth among many co-owners.

The law is that: “Each tenant in common equally is entitled to share in the possession of the entire property and neither may exclude the other from any part of it.” [7]Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548 Another court explained that: “[T]he cotenants hold the common land by unity of possession, for which reason there can be no specific or determinate portion of the common land which any one of such tenants can claim as his in severalty.”[8]Wood v. Henley (1928) 88 Cal.App. 441, 452

This means that co-owners cannot exclude each other from parts of the property, and that alleged informal agreements whereby one co-owner occupies one part of the property while another occupies another may not constitute a defense.

How to Prove an Ouster

Sometimes, the issue is not whether there was an ouster, but whether a co-owner can prove that they were denied admittance from the entirety of the property.

The law is that: “An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. The ouster must be proved by acts of an adverse character, such as claiming the whole for himself, denying the title of his companion, or refusing to permit him to enter. Actual or constructive possession of the ousted tenant in common at the time of the ouster is not necessary. The acts of Mrs. Kroenert in the present case were sufficient to constitute an ouster, and Zaslow is entitled to recover common possession of the premises and damages for loss of use. Mrs. Kroenert denied Zaslow’s title. Her agent, Chapman, acting under her direction, changed the locks on the doors, posted ‘no trespassing’ signs on the property, and denied Zaslow admittance upon demand. Whether or not the sublessee consented to the possession by Kroenert is of no significance. The wrong or ouster took place when Mrs. Kroenert denied Zaslow’s title and refused him common possession.”[9]Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548

“Thus, in particular, an ouster consists of acts of the most open and notorious character, clearly giving notice to the world, and to all having occasion to observe the condition and occupancy of the property, that the intention of the cotenant is to exclude, and does exclude, the other cotenant.”[10]16 Cal. Jur. 3d Cotenancy and Joint Ownership § 65 (citing Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App. 4th 1122, as modified on denial of reh’g, (Sept. 28, 2011) and … Continue reading “Whether there has been an ouster of a cotenant is a legal question.”[11]Hacienda Ranch Homes, Inc. v. Superior Ct. (2011) 198 Cal.App. 4th 1122, as modified on denial of reh’g (Sept. 28, 2011)

For example, in one case, the court found an ouster where there was a denial of title, changing locks, posting “no trespassing” signs on the property, and denying admittance.[12]Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548

Proving or disproving an ouster requires the skill of an experienced co-ownership and partition lawyer to ensure that the right evidence is presented to the court.

Proving Ouster Through Notice Under California Civil Code 843

“One way of proving an ouster is for the excluded cotenant to serve the cotenant in possession with a written demand for concurrent possession that specifically refers to Civil Code 843  and identifies the specific date that the cotenant in possession must offer the excluded cotenant the right of possession…If the cotenant in possession does not offer unconditional concurrent possession to the excluded cotenant within 60 days after service of the notice, an ouster is established, and the excluded cotenant may seek his or her remedies for damages, possession, and/or partition.”[13]Ouster—In general, 4 Cal. Real Est. (4th ed.) § 11:5 (citing California Civil Code 843); see Estate of Hughes (1992) 5 Cal.App. 4th 1607

Damages for Ouster

“Upon proof of ouster and a demand for entry by the cotenant out of possession and a refusal by the cotenant in possession the ousted cotenant is entitled to recover common possession of the premises. And one tenant in common ousted by another is entitled to recover damages resulting from the ouster, which ordinarily amounts to his share of the value of the use and occupation of the land from the time of the ouster.”[14]Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548 These damages can form part of the offsets and accounting in a partition, which is one way to win a partition in California.

Ouster as an Element of Adverse Possession

Co-owners who have been ousted for a sufficient period of time may be forced to address a claim by the co-owner in possession that they are entitled to adverse possession. As a recent unpublished decision in California explained what can happen if a co-owner leaves the co-owned property for an extended period of time:

The bar is higher when the property owner and would-be adverse possessor are cotenants on the property. [15]Hightower v. Flowers (Cal. Ct. App. May 22, 2015) No. B253697, 2015 WL 2447213, at *3 (citing Preciado v. Wilde (2006) 139 Cal.App.4th 321, 322, 325 (Preciado); Hacienda Ranch Homes, Inc. v. … Continue reading Because cotenants enjoy “equal possessory rights in land,” including the right to occupy the property exclusively [16]Hightower v. Flowers (Cal. Ct. App. May 22, 2015) No. B253697, 2015 WL 2447213, at *3 (citing Preciado, at pp. 322, 325), there is nothing remarkable—and, more to the point, nothing adverse —about one cotenant occupying a jointly owned property. Thus, to put a cotenant on notice that the would-be adverse possessor’s occupation is hostile, the would-be adverse possessor must first “oust” her cotenant. [17]Hightower v. Flowers (Cal. Ct. App. May 22, 2015) No. B253697, 2015 WL 2447213, at *3 (citing Preciado, at p. 325; Hacienda Ranch Homes, at p. 1128.)

It is important to contact a skilled partition attorney if you are addressing adverse possession claims on co-owned property.

Contact an Experienced Co-Ownership Attorney in California

If you have a co-owner who it taking exclusive possession of a part or all of the property you own together, know that you have rights that are not easily dissolved. Conversely, if you wish to obtain title to a property you reside in from a co-owner out of possession, a partition attorney can assist.

A partition action allows both parties to receive their proportion of an equity in a property fairly, justly, and legally. An experienced partition attorney can answer questions you have regarding moving out of and selling a jointly owned property in California. For a free, 15 minute consultation with an attorney at Talkov Law, reach out to us online or by phone at (844) 4-TALKOV (825568).

References

References
1 Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548; accord Hacienda Ranch Homes, Inc. v. Superior Ct. (2011) 198 Cal.App. 4th 1122, 1128, as modified on denial of reh’g (Sept. 28, 2011) (quoting Estate of Hughes (1992) 5 Cal.App. 4th 1607)
2 Estate of Hughes (1992) 5 Cal.App. 4th 1607
3 Preciado v. Wilde (2006) 139 Cal.App.4th 321, 322, 325; Johns v. Scobie (1939) 12 Cal.2d 618, 623–624
4 Carpentier v. Webster (1865) 27 Cal. 524, 561–563
5 California Civil Code § 843
6 Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128 (quoting Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548
7, 9, 12, 14 Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548
8 Wood v. Henley (1928) 88 Cal.App. 441, 452
10 16 Cal. Jur. 3d Cotenancy and Joint Ownership § 65 (citing Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App. 4th 1122, as modified on denial of reh’g, (Sept. 28, 2011) and Kraemer v. Kraemer (1959) 167 Cal.App. 2d 291)
11 Hacienda Ranch Homes, Inc. v. Superior Ct. (2011) 198 Cal.App. 4th 1122, as modified on denial of reh’g (Sept. 28, 2011)
13 Ouster—In general, 4 Cal. Real Est. (4th ed.) § 11:5 (citing California Civil Code 843); see Estate of Hughes (1992) 5 Cal.App. 4th 1607
15 Hightower v. Flowers (Cal. Ct. App. May 22, 2015) No. B253697, 2015 WL 2447213, at *3 (citing Preciado v. Wilde (2006) 139 Cal.App.4th 321, 322, 325 (Preciado); Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128 (Hacienda Ranch Homes ).)
16 Hightower v. Flowers (Cal. Ct. App. May 22, 2015) No. B253697, 2015 WL 2447213, at *3 (citing Preciado, at pp. 322, 325)
17 Hightower v. Flowers (Cal. Ct. App. May 22, 2015) No. B253697, 2015 WL 2447213, at *3 (citing Preciado, at p. 325; Hacienda Ranch Homes, at p. 1128.)
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