Can a Co-Owner Trespass on Jointly Owned Property?

Co-owners who disagree about how to use co-owned property often find themselves in toxic co-ownership relationships. Ending the co-ownership relationship via a partition action, or the forced sale of jointly owned property, can benefit all co-owners in the long run. However, while the property remains co-owned, it’s not uncommon for issues to arise regarding who is allowed on the property.

Can a co-owner trespass on jointly owned property? No. “A tenant in common cannot trespass on the commonly owned property.” Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1189.

American Jurisprudence explains that: “Since each cotenant has a legal right to enter upon and enjoy the common property, trespass cannot ordinarily be maintained by one co-owner of real property against another for such acts as merely entering the property, or the like.” 20 Am. Jur. 2d Cotenancy and Joint Ownership § 86.

“The essence of the cause of action for trespass is an ‘unauthorized entry’ onto the land of another.” Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1778; accord 59 Cal. Jur. 3d Trespass to Realty § 1.

“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.” Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548. “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.” 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). A co-owner out of possession may then try to send a notice of ouster to regain possession of the property. Indeed: “[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.” Wood v. Henley (1928) 88 Cal.App. 441, 452.

Since a co-owner is entitled to be on the commonly owned land, a trespass is generally an inapplicable cause of action in the context of co-ownership.

If for some reason the co-owner had agreed not to be on the property, presumably by renting the property to a third party or even the other co-owner(s), there could be a cause of action for trespass. However, this seems highly unlikely, and the alleged trespasser would presumably be akin to a property owner managing their own property if they merely came on to the property for reasons such as repairs and maintenance.

Talkov Law Can Help

Co-ownership raises many unique legal outcomes that may not be understood by attorneys with a broad practice that only occasionally addresses these topics. If you want to speak with California’s #1 law firm for co-ownership disputes, contact our partition lawyers at (844) 4-TALKOV (825568) or online today.

About Scott Talkov

Scott Talkov is a partition lawyer in California. He founded Talkov Law Corp. after more than one decade of experience at a California real estate litigation firm, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star for 9 consecutive years. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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