What is a Notice of Ouster? (Civil Code § 843)

A notice of ouster is a demand to the co-owner in possession for concurrent possession of the property issued by a tenant out of possession. The law requires that “[t]he written demand shall make specific reference to this section [Civil Code § 843] and to the time within which concurrent possession must be offered under this section. Service of the written demand shall be made in the same manner as service of summons in a civil action. 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.” Civ. Code § 843(b).

What is an Ouster?

“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

What is the purpose of a notice of ouster?

A notice of ouster is a precursor to claiming damages for ouster in a legal action.

Indeed, the law provides that: “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.” Civ. Code § 843(b). In turn: “A claim for damages for an ouster established pursuant to this section may be asserted by an independent action or in an action for possession or partition of the property or another appropriate action or proceeding, subject to any applicable statute of limitation.” Civ. Code § 843(c).

Notice of Ouster / Demand for Concurrent Possession – Example

If there has been an ouster at the co-owned property, an attorney for the co-owner out of possession might send a notice of ouster as follows:

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that you provide [co-owner out possession] with concurrent possession of the premises located at [property address]

PLEASE TAKE FURTHER NOTICE that the [co-owner out of possession] will have a claim to damages amounting to the complete value of the use and occupation of the land from the time of the ouster, including for tortious eviction, emotional distress, and punitive damages unless you do so within sixty (60) days under Civil Code section 843.

How to Respond to a Notice of Ouster

Sometimes, there is simply no validity to the claim of ouster. Instead, an attorney has been hired to get the attention of the co-owner in possession, perhaps to encourage a buyout or get them to speak with an attorney so that the attorney encourages a buyout. In those situations, it may be best to document that the party claiming to be ousted is entitled to possession in a formal notice as follows:

TO ALL PARTIES AND THEIR ATTORNEYS:

PLEASE TAKE NOTICE that Plaintiff is not, and has not, been ousted from the real property located at [property address] (“PROPERTY”).

To the extent that Plaintiff did not already have concurrent possession of the PROPERTY, Defendant hereby confirms that Plaintiff is entitled to concurrent possession of the PROPERTY.

If Plaintiff has lost their key to the PROPERTY, Plaintiff or her counsel can request a code for a lockbox at the PROPERTY by email to [email address for the party in possession or their counsel].

As such, Plaintiff’s rights, if any, to erroneously claim damages for ouster under Civil Code Section 843 resulting from their voluntary decision to leave the PROPERTY are hereby terminated.

California Civil Code § 843

Civil Code Section 843 specifies how a co-owner out of possession can demand possession from the co-owner in possession, and document the potential for damages, as follows:

(a) If real property is owned concurrently by two or more persons, a tenant out of possession may establish an ouster from possession by a tenant in possession in the manner provided in this section. This section does not apply to the extent the tenant out of possession is not entitled to possession or an alternative remedy is provided under the terms of an agreement between the cotenants or the instrument creating the cotenancy or another written instrument that indicates the possessory rights or remedies of the cotenants. This section supplements and does not limit any other means by which an ouster may be established.

(b) A tenant out of possession may serve on a tenant in possession a written demand for concurrent possession of the property. The written demand shall make specific reference to this section and to the time within which concurrent possession must be offered under this section. Service of the written demand shall be made in the same manner as service of summons in a civil action. 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.

(c) A claim for damages for an ouster established pursuant to this section may be asserted by an independent action or in an action for possession or partition of the property or another appropriate action or proceeding, subject to any applicable statute of limitation.

(d) Nothing in this section precludes the cotenants, at any time before or after a demand is served, from seeking partition of the property or from making an agreement as to the right of possession among the cotenants, the payment of reasonable rental value in lieu of possession, or any other terms that may be appropriate.

California Civil Code § 843

Talkov Law Can Help

Talkov Law is California’s #1 partition law firm, having filed more partition cases than any other law firm. We know the intricacies of partition law to help end co-ownership disputes. If you want to put an end to the claims by your co-owner of being ousted or otherwise have a co-ownership issue, contact us for a free consultation with our partition lawyers via our website 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)
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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