Co-Owner’s Right to Evict Their Co-Owner
Co-ownership can present many headaches, including shared expenses, sharing a common space, and, most importantly, agreeing when to sell the property. Co-owners might be wondering how to evict a co-owner when there is confusion as to who has the right to live in a co-ownership home.
Unfortunately for co-owners in this situation, an unlawful detainer, known commonly as an eviction, won’t help them get rid of their co-owner. This is because 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.” 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.”Wood v. Henley (1928) 88 Cal.App. 441, 452
Miller & Starr, the leading treatise on California real estate, explains that: “As between the cotenants, each has the right to enter on and to occupy the entire property, and no cotenant has the right to exclude another cotenant from any portion of the property.” Right to possession, 4 Cal. Real Est. (4th ed.) § 11:2.
Excluding a Co-Owner Can Give Rise to an Ouster Claim
In fact, trying to get your co-owner off the property might land you in legal trouble by allowing the co-owner to claim damages from ouster.
Miller & Starr also explains that: “Unless the cotenant is in possession under a lease or license by the other cotenants, the exclusion of one cotenant by another cotenant is called an ‘ouster,’ and the excluded cotenant is entitled to recover the rental value of the premises from the tenant in possession.” Right to possession, 4 Cal. Real Est. (4th ed.) § 11:2.
“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) … 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”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.”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”Carpentier v. Webster (1865) 27 Cal. 524, 561–563, ranging from invoking the statutory notice procedure for ousterCalifornia Civil Code § 843 to “claiming the whole for himself, denying the title of his companion, or refusing to permit him to enter.”Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128 (quoting Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548
This means that co-owners cannot exclude each other from parts of the property. Rather than taking matters into your own hands, the smarter approach is to to hire an experienced partition lawyer.
Exception: Domestic Violence Restraining Order Can Solve Some Possession Issues with Tenants and Co-Owners
One of the rare exceptions to the right of all co-owners to occupy the property is a domestic violence restraining order (DVRO), which can be obtained against so long as the co-owners both occupy the property, or are related by blood, marriage, romantic relationship, or having a child together. These orders are very powerful and should only be filed when the appropriate facts can be shown.
A Partition Referee Can Remove and Evict Uncooperative Co-Owners and Occupants
In that process, sometimes defendants who care co-owners will try to resist the partition referee. Luckily, the courts have ways to handle this issue by granting the partition referee the right to request a writ of possession, which “states the court’s order to the sheriff to take and hold property that the plaintiff claims is theirs but that the defendant is wrongly keeping.” This is the same document that a landlord would obtain an an unlawful detainer. However, obtaining a writ of possession in a partition action is generally much faster than an unlawful detainer (in addition to an unlawful detainer being the improper device to remove a co-owner from possession).
Talkov Law's Partition Attorneys Can Help
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With six, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled 250 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!
|↑1||Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548|
|↑2||Wood v. Henley (1928) 88 Cal.App. 441, 452|
|↑3||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)|
|↑4||Estate of Hughes (1992) 5 Cal.App. 4th 1607|
|↑5||Preciado v. Wilde (2006) 139 Cal.App.4th 321, 322, 325; Johns v. Scobie (1939) 12 Cal.2d 618, 623–624|
|↑6||Carpentier v. Webster (1865) 27 Cal. 524, 561–563|
|↑7||California Civil Code § 843|
|↑8||Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128 (quoting Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548|