Ouster definition: In property law, an ouster happens when one co-owner wrongfully excludes another co-owner from property they own together, for example by changing the locks, denying the other owner’s title, or refusing them entry. In California, an ousted co-owner can recover possession and their share of the property’s rental value, and can seek partition to force a sale.
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]
“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], 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] Ouster may be effected through “a diversity of methods”[4], ranging from invoking the statutory notice procedure for ouster[5] to “claiming the whole for himself, denying the title of his companion, or refusing to permit him to enter.”[6]
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] 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]
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.
What Counts as Ouster, and What Doesn’t
Ouster requires more than one co-owner living in the property. Courts look for open, unequivocal acts that exclude the other owner.
| Likely ouster | Not ouster by itself |
|---|---|
| Changing the locks and refusing the co-owner a key | One co-owner living in the property alone |
| Posting “no trespassing” signs aimed at the co-owner | The other co-owner choosing to move out |
| Denying that the co-owner has any ownership interest | Not paying rent to the co-owner out of possession |
| Refusing entry after a demand for access | Delays or disagreements about selling |
| Ignoring a Civil Code 843 notice for 60 days |
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]
“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] “Whether there has been an ouster of a cotenant is a legal question.”[11]
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]
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] This written demand is sometimes known as a notice of ouster.
Example: Ouster Between Siblings
Two siblings inherit their parents’ home as tenants in common. One moves in, and the other lives out of state. Simply living there is not an ouster. Years later, the out-of-state sibling asks for a key and to stay there during a visit. The sibling in possession changes the locks, says the house is “mine now,” and refuses entry.
Those acts, denying title and refusing entry after a demand, are the kind of conduct California courts have treated as ouster. To remove doubt, the excluded sibling can also serve a notice of ouster under Civil Code 843. If the sibling in possession does not offer concurrent possession within 60 days, ouster is established, and the excluded sibling can pursue damages and partition.
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] 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] Because cotenants enjoy “equal possessory rights in land,” including the right to occupy the property exclusively [16], 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]
It is important to contact a skilled partition attorney if you are addressing adverse possession claims on co-owned property.
Ouster vs. Eviction
Eviction is a landlord removing a tenant through an unlawful detainer case. Ouster is different: it happens between co-owners, each of whom has an equal right to possess the whole property. A co-owner generally cannot “evict” another co-owner. The usual remedies are recovering possession, damages for ouster, and a partition action.
Ouster FAQs
What does ouster mean in property law?
Ouster means one co-owner has wrongfully excluded another co-owner from property they share, through open acts such as changing the locks, denying the other owner’s title, or refusing entry.
Is a co-owner living in the house an ouster?
No. Each co-owner has the right to possess the whole property, so one co-owner living there alone is not an ouster unless they also exclude the other owner.
What can you recover for ouster in California?
An ousted co-owner can recover common possession and damages, which ordinarily equal their share of the value of the use and occupation of the property from the time of the ouster. Those amounts are often handled through the accounting and offsets in a partition.
How do you prove ouster?
Through evidence of acts like changed locks, denial of title, or refused entry after a demand, or by serving a notice under Civil Code 843 and waiting 60 days without an offer of concurrent possession.
Contact an Experienced Co-Ownership Attorney in California
If you have a co-owner who is 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. Talkov Law’s partition lawyers have handled 650 partition matters across California.
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 (877) PARTITION (727-8484).
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.) |
