Damages for Ouster in California Partition Actions

Co-ownership of property often involves a delicate balance of rights and responsibilities among the owners. However, this equilibrium can be disrupted when one co-owner oversteps their bounds, leading to a situation termed “ouster.”

An ouster occurs when one co-owner unlawfully excludes another from the property, effectively seizing sole benefits of ownership while circumventing its associated costs. This breach not only disrupts the co-ownership dynamic but also raises significant legal questions, particularly regarding the entitlement to damages. Understanding the nuances of such damages, their calculation, and legal implications, forms a crucial part of addressing the complexities of ouster in property law. The usual damage for ouster is the rental value of the property.

What is an Ouster?

In the context of co-ownership, ouster refers to a situation where one co-owner wrongfully excludes another from their shared property. The crux of ouster lies in proving acts of adverse nature, like claiming sole ownership, denying the other’s title, or blocking entry. Legal recognition of ouster involves clear, overt acts signifying an intention to exclude the other co-owner. The court is Zaslow found that actions like changing locks and posting “no trespassing” signs were deemed sufficient for an ouster.[1] Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548 The adjudication of whether an ouster has occurred is a legal question, highlighting the need for skilled legal representation in these matters.

Damages for Ouster

“An ousted cotenant may recover damages resulting from the ouster equal to his or her share of the rents and profits, or the rental value of the property, during the time of the ouster. When there is no showing that the ouster is permanent or that the ousted cotenant cannot regain the common possession, the recovery of damages for the loss of use is an adequate remedy.”[2] 4 Cal. Real Est. (4th ed.) § 11:5.

“[W]here one cotenant wrongfully ousts the other and prevents him from enjoying joint possession …, the wrongfully ousted cotenant may recover the damages resulting from the ouster, which ordinarily are his share of the value of the use and occupation of the land during the period of the ouster.”[3] Brunscher v. Reagh (1958) 164 Cal.App.2d 174, 176–177; see De Harlan v. Harlan (1946) 74 Cal.App.2d 555; Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1092.

“In order for a cotenant who is not in possession to recover the rents and profits, or the value of possession, from the cotenant in possession, he must establish that there has been an ouster….”[4] Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612. “An ouster, in the law of the tenancy in common is the wrongful disposition or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession.”[5] Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612.

Complaint for Damages for Ouster

This form is designed for initiating a stand-alone cause of action for ouster, separate from a partition action. It is tailored for individuals who believe they have been wrongfully excluded from their property rights in a co-ownership situation. The form provides a structured approach to present your case, outlining the necessary legal elements of ouster. It’s an essential tool for co-owners seeking to assert their rights and rectify situations where they have been unlawfully deprived of access to or benefits from their shared property.

Plaintiff alleges:

1. Plaintiff is [name of plaintiff]. Plaintiff is a cotenant of the real property located at [address of property], and described as follows: [description of property].

2. Defendant is [name of defendant]. Defendant is Plaintiff’s cotenant in the real property.

3. [Allegation of jurisdiction and venue].

4. Plaintiff’s cotenancy was established by a deed from [name of grantor], dated [date of deed], recorded in the official records at [name of city]. A copy of the deed is attached and marked “Exhibit [designation of exhibit],” and incorporated by reference.

5. On [date of possession], Defendant took possession of the real property and remains in possession.

6. On [date of demand], Plaintiff served Defendant with a written demand for concurrent possession. A copy of the written demand is attached and marked “Exhibit [designation of exhibit],” and incorporated by reference. The written demand complied with the requirements of Civ. Code, § 843(b).

7. Defendant failed to offer and provide unconditional concurrent possession of the property to Plaintiff within 60 days after service of the written demand. Thus, an ouster was established by Defendant’s conduct pursuant to Civ. Code, § 843(b).

8. As a proximate result of Defendant’s ouster of Plaintiff, Plaintiff suffered [description of injuries], all to Plaintiff’s damage in the sum of $[dollar amount of sum].

9. Defendant’s ouster of Plaintiff entitles Plaintiff to sue for damages under Civ. Code, § 843(c).

West’s Cal. Code Forms, Civil (6th ed.) § 843 Form 2

How to Document an Ouster

Effectively documenting ouster claims is essential to counter baseless allegations. Oftentimes, these claims arise not from actual exclusion but as tactics to instigate buyouts or negotiations. Proper documentation that affirms a party’s rightful possession can invalidate wrongful ouster damage claims. This practice is in line with Civil Code Section 843, which prescribes the method for a dispossessed tenant to prove ouster and seek damages, ensuring that such claims are substantiated by facts rather than strategic maneuvers.

For documenting ouster, serving a notice of ouster is the initial legal step toward damage claims. As stated in California Civil Code § 843(b), “An ouster is established 60 days after service is complete if, within that time, the tenant in possession does not offer and provide unconditional concurrent possession of the property to the tenant out of possession.” After establishing an ouster, claims for damages can be pursued through an independent action or in conjunction with actions for possession or partition of the property, as per Civil Code § 843(c), within the applicable statute of limitations.

Options When a Co-Owner Has Been Ousted

For co-owners uncomfortable with their co-ownership situation, there are limited options other than a partition due to the right of all co-owners to possess the jointly owned property. Evicting a co-owner isn’t typically feasible as the law grants each co-owner equal rights to the entire property. However, in cases of domestic violence, a restraining order can address possession issues.

One option for managing co-ownership disputes is the use of a partition referee. This neutral party is appointed during a partition action to oversee the sale of the property and distribute the proceeds equitably among the co-owners. If a co-owner resists the process, the referee can request a writ of possession from the court. This legal tool is more expedient than typical eviction processes, tailored to address the specific dynamics of co-ownership disputes, while avoiding the headaches of an eviction.

Talkov Law Can Help

At Talkov Law, the attorneys specialize in partition actions, offering expert legal assistance in cases of ouster or allegations of ouster among co-owners. If you’ve been ousted, or your co-owner alleges that you have ousted them, we can help. We are California’s #1 law firm for partition actions. Whether you’re facing an ouster situation or dealing with a co-owner’s claims, Talkov Law’s dedicated legal team is well-equipped to handle such cases efficiently. For a free consultation, contact Talkov Law online or at (844) 4-TALKOV (825568).


1 Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548
2 4 Cal. Real Est. (4th ed.) § 11:5.
3 Brunscher v. Reagh (1958) 164 Cal.App.2d 174, 176–177; see De Harlan v. Harlan (1946) 74 Cal.App.2d 555; Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1092.
4, 5 Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612.
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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