Cotenants: Right to Possession V. Right to Contribution Colleen Clemente

University of Baltimore Law Forum Volume 13 Article 6 Number 1 Fall 1982

1982 Cotenants: Right to Possession v. Right to Contribution Colleen Clemente

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Recommended Citation Clemente, Colleen (1982) "Cotenants: Right to Possession v. Right to Contribution," University of Baltimore Law Forum: Vol. 13: No. 1, Article 6. Available at: http://scholarworks.law.ubalt.edu/lf/vol13/iss1/6

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ant(s) moves out because of dissat- Cotenants: isfaction with the relationship, or Right because of a new one, he has not to Possession v. Right to Contribution been ousted. by Coleen Clemente Use and Possession Award Use and possession of the marital home by one spouse as awarded by the court, In our society there is an increas- sider in a determination regarding under the Maryland Property Dis- ing number of people in non-tra- his right to possession. position Act, Md. Cts. & Jud. Proc. ditional relationships purchasing real Code Ann. 3-6A-06 (1974, 1980 Repl. property together. The possibilities Ouster Absent an agreement to the Vol., 1982 Supp.) "effectively cre- include those cohabiting for an in- contrary, a cotenant is liable to the ates a right in one tenant to remove definite period, those intending more other cotenant(s) for the sole use a cotenant from property owned by permanent situations and those and occupancy of the common tenants by the entirety. . . ." Pitsen- finding themselves among the for- property. This general rule applies berger v. Pitsenberger, 287 Md. 20, 28, merly married. Whether of the same unless there has been an ouster. Is- 410 A.2d 1052, 1057 (1980). or opposite sex, these individuals rael v. Israel, 30 Md. 120, 96 AD 571 This award to one cotenant does correspondingly increase the num- (1869). Ouster is "a notorious and not usually relieve the other coten- ber of cotenants. unequivocal act by which one co- ant of his responsibilities toward the A cotenancy refers to the rela- tenant deprives another of the right jointly held property because the tionship between the parties re- to the common and equal posses- vacating spouse has not been ousted garding their holding of the real sion and enjoyment of the prop- in a legal sense. The court in Pit- property, encompassing tenancy in erty." Young v. Young, 37 Md. App. senberger emphasized that the coten- common, joint tenancy, and ten- 211, 221, 376 A.2d 1151, 1158 (1977). ant is still receiving a benefit from ancy by the entirety. When two or For example when a cotenant has the use of his property. The award more people own real property to- forcibly removed the other cotenant of use and possession of the marital gether, they are cotenants. The ac- from the property, has changed the home depends on the existence of quisition of legal rights and duties locks and has denied the other co- a dependent minor who will live in inevitably gives rise to legal prob- tenant(s) entry, an ouster has oc- the home with the remaining spouse. lems. curred. Id. at 34, 410 A.2d at 1060. The va- For instance, the cotenants could Ouster is an important exception cating spouse, charged with the care rent or lease the property to a third to the liability of a cotenant for the of his minor children, is "using his party. When profits are derived from exclusive possession of real prop- property to properly house his chil- a third party's use or possession of erty. If one cotenant has been un- dren" even though he is not in pos- the jointly held property, the coten- justly or unlawfully deprived of his session with them. Id. Maryland do- ants are entitled to share in the prof- right to possession, he may not be mestic law empowers the courts to its in proportion to their interest. required to contribute to the cost of order either party to pay certain ex- Colburn v. Colburn, 265 Md. 468, 290 the real property. The cotenant who penses even in addition to support. A.2d 480 (1972). To ensure this right, is depriving the other cotenant(s) of Maryland Property Disposition Act, there is a statutory provision for an possession may be denied rights, for Md. Cts. & Jud. Proc. Code Ann. accounting. "A tenant in common example, the right to contribution, 3-6A-06 (1974, 1980 Repl. Vol., 1982 or a joint tenant who receives rent that otherwise might have been per- Supp.). However, a court may de- from a third party for the use and mitted. cline to follow domestic law and in- enjoyment of the property, is ac- There is an unexpected analogy stead apply the rules of cotenancy. countable to any cotenant for that between modern cohabitations and portion of the rent over and above outmoded sibling situations. In the Rental Value Although a cotenant his proportionate share." Md. Real past, one or more of the "children" is entitled to share in profits and Prop. Code Ann. § 14-106 (1974). of a family frequently were living in benefits from the rental of the prop- the family home after the parent's erty to third parties, this does not death. As each brother or sister entitle one cotenant to exact rent Right to Possession moved out to seek employment, to from the other cotenant for occu- Usually, cotenants encounter few, marry, or merely to live elsewhere, pancy of the property absent an if any, problems of legal signifi- one usually remained in possession ouster. An action for accounting cance while occupying the prop- of the property, becoming the sole would also be disallowed, because erty, unless or until the relationship occupant. The cotenant(s) in the this remedy only applies to an ac- fails and one party vacates. Whether sibling situation had not been ousted counting by one cotenant to the other a cotenant moved out on his own from the property. Similarly, with regarding a third party and not by or was forced out is an issue to con- modern counterparts, if the coten- one cotenant to the other for his

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own possession. However, both basically the law of restitution with Real Estate Taxes and Insurance In remedies, profit-sharing and an ac- special application to real property addition to mortgage payments or counting, may be available when law. The expenditures for which other encumbrances on the real there has been an ouster. contribution may be sought include property, there may be real estate The nature of a cotenancy entitles mortgages and other encumbran- taxes and insurance premiums paid each cotenant to the possession of ces, real estate taxes and insurance, by the occupying cotenant for which the common property, with the and repairs and improvements to he is entitled to contribution. As with possession of one presumed to be the property. mortgage payments, consent to that of all others. In the absence of Mortgages Generally, in Maryland payment of taxes and insurance by an ouster or an agreement between when one tenant pays a mortgage the other cotenant(s) is not neces- the parties, the sole occupant can- or other encumbrance upon the sary for the right to contribution to not be held liable for rent or any common property, he is entitled to be enforceable. The cotenant's in- other compensation to his coten- contribution from his cotenant(s) to terest in the real property is being ant(s) for that to which he has a the extent to which he paid their protected from loss by the payment perfect right. Brown v. Brown, 248 share. Pino v. Clay, 251 Md. 454, 248 of real estate taxes and insurance. Md. 139, 235 A.2d 706 (1967). The A.2d 101 (1968). After the other co- demanding cotenant also has the tenant(s) vacates the property, the Repairs Consent may right to occupy, use and enjoy the become an is- remaining owner may pay the mort- sue with other types of expendi- property. He cannot sue other co- gage or other liens to prevent fore- tures. Repairs may tenant(s) because he is not exercis- be a source of closure and to preserve his right to conflict between ing his right of possession. the occupant of the possession. Since the equity of the property and the non-occupying co- Yet in at least one case the trial non-contributing cotenant(s) is being tenant. As a general rule court erroneously treated the pay- one coten- increased by these payments, the ant is entitled to contribution from ments made by one cotenant for cotenant(s) would be unjustly en- another for necessary repairs when mortgage, real estate taxes, and in- riched if contribution were not re- they were done with the assent of surance "in the nature of monthly quired. the other, or when the repairs rental payments" which "would were If the non-possessing cotenant(s) necessary for the preservation of the have been incurred were she to live does not voluntarily contribute his building or other erection on the anywhere, while similar payments share, the other cotenant(s) may pay land, or when the repairs were done were presumably being incurred the full amount due. The paying co- by one cotenant after request of and elsewhere by" her husband. Di- tenant(s) may then seek contribu- refusal by the other cotenant(s). Tommasi v. DiTommasi, 27 Md. App. tion by reimbursement, either by a The "expediency of making nec- 241, 255-56, 340 A.2d 341, 349 (1975) lien on the property or upon sale essary repairs, the possible obliga- (quoting the trial court opinion). The for the amount required from the tions of third parties to make the Maryland Court of Special Appeals other cotenant(s). repairs, and the necessity of the re- expressly rejected this concept. In DiTommasi, the party had been denied contribution for specific expenses of the joint property that she had paid. On appeal, the court held that by equating those payments with monthly rental payments, the chancellor failed to "compel the ul- timate payment of a debt by the one who in equity and good conscience ought to pay it." Id. at 260, 340 A.2d at 352 (quoting Aiello v. Aiello, 268 Md. 513, 519, 302 A.2d 189, 192 (1973)). A cotenant is required to contribute his share of certain expenses regardless of whether or not he shares possession of the real property with his cotenant(s) as long as there has not been an ouster.

Right to Contribution The right of contribution from other non-possessing cotenant(s) is

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pairs themselves are proper objects without reimbursement to the co- possession award. Rent may not be of consideration for all of the joint tenant for his share of the improve- required of a sole-occupancy coten- owners." Colburn v. Colburn, 265 Md. ments (or repairs) made before the ant, although it is possible to re- at 477, 290 A.2d at 485 (1972). The sale. The Court of Special Appeals move him effectively by filing for court in Colburn held that by not commented that by failing to ap- sale in lieu of partition. It may be informing another cotenant regard- peal, apparently the non-contribu- that the cotenant first finds out that ing the performance of the repairs, tor recognized the validity of the he is required to contribute for some the one cotenant deprived the other Chancellor's ruling charging him for expenses of the property when the cotenant of the opportunity to make the contributions. Id. at 263, 340 A.2d other cotenant(s) brings the case into a determination prior to the money at 353. court. Absent an agreement or an being expended. If the cotenant is The right to contribution is based ouster, both of which must be requested to participate and re- on the fact that improvements add proven by the party alleging them, fuses, then the court will determine to the value of the property. On the the cotenant may be required to entitlement to contribution. other hand, amounts for mainte- contribute his share of the mort- When a situation arises in which nance, rather than for improve- gage, real estate taxes, insurance and it is necessary to make a repair or ments or repairs, have been disal- necessary repairs and improve- otherwise to act to preserve the joint lowed. Maintenance items include ments on the property. property, the cotenant performing lawncare, dampproofing walls, wall- Whether the cotenants are for- the repair or improvement should papering, and ordinary bills, such merly married, siblings, or unre- inform the other cotenant(s) and re- as telephone, gas and electric. lated cohabitants, their interest in quest participation. Nevertheless, the jointly held real property is sim- there are certain instances in which Tenancy by the Entirety ilar. An individual should be ad- that requirement should be waived, A tenancy by the entirety is es- vised of his legal rights and duties such as, emergencies which require sentially a joint tenancy and the same regarding possession and contri- immediate action, or times when a rules apply to this type of owner- bution of real property, preferably cotenant cannot be contacted. The ship as to any other type of coten- before making the purchase with general rule was propounded in ancy. It follows, therefore, that the another. Realistically, however, it Young that "one cotenant is entiled rule of contribution between ten- may not be until one of the coten- to contribution from another for ants in common is equally applica- ants has lost possession that he seeks necessary repairs made with the as- ble to tenants by the entireties. advice. The information needed for sent of the other, or without such Crawford v. Crawford, 293 Md. 307, that advice will depend on the cir- assent when the repairs are neces- 443 A.2d 599 (1982). The non-pos- cumstances of the case. sary for the preservation of the sessing spouse would be required structures on the land." 37 Md. App. to contribute for certain costs of the at 219, 376 A.2d at 1157 (emphasis property as previously discussed. added). BEIGHT BAR REVIEW However, the court in Young Nonetheless, there are many vari- did not distinguish between a re- ables in domestic situations which SCHOOL quest and a refusal because the gen- can influence the outcome of the CLASSES IN eral rule was inapplicable to the possession-contribution contro- Young situation which involved an versy. For instance, the court might SILVER SPRING, MARYLAND ouster. order one cotenant to pay the ex- REGISTRATIONS ARE NOW BEING penses, including resulting tax lia- TAKEN FOR THE 1983 Improvements The present Mary- bilities, of the real property. land position is best explained in MARYLAND DiTommasi v. DiTommasi, 27 Md. Conclusion App. 241, 340 A.2d 341 (1975). There Cotenancy suits are usually BAR EXAMS was no reference in the record to brought in equity, thus, there is either a request or refusal for the flexibility in the rules governing the For Further Information expenditures involved. However, the determination of allowable expend- Contact: trial court granted the contributions itures. Fair play, the prevention of for both repairs and improvements unjust enrichment, the preservation THOMAS L. BEIGHT on the basis of equity. Contribu- of real property, and the avoidance tions were allowed for improve- of inequities are all proper consid- 594 NORTH FREDERICK AVENUE ments-storm windows, central air- erations of the court in exercising GAITHERSBURG, MARYLAND 20760 conditioning, and a new bathroom its discretion. sink. It would have been an injus- Decisions will differ if the coten- PHONE 301-948-6555 or tice to allow the non-contributor to ant was ousted, or moved out vol- 301-460-8350 profit upon the sale of the property untarily, or is subject to a use and