When individuals co-own property, it may raise questions regarding the rights of each individual owner to that common property. In certain situations, the relationship between the co-owners may sour, which causes one owner to seek the benefits of sole ownership, or the right to exclude other individuals, without having to pay full price for the property.

What may result in these types of situations is one co-owner ejects the other co-owner in a way which the law considers an unlawful ouster. It is important to note that each state has its own different requirements regarding what constitutes ouster.

How Do Ousters Occur?

Ouster occurs when an individual is wrongfully excluded or dispossessed of property to which they are entitled. Ouster occurs when an individual knowingly prevents a property owner from entering or utilizing all or a part of their property.

Ousters occur under the legal concept of a tenancy in common. A tenancy in common is formed when two individuals share joint possession of real property.

Tenancies in common are the most favored forms of joint possession. They are a form of real estate title which allows more than one individual to possess a share of the property.

Tenancies in common give all co-tenants the right to share equally in possession of an entire property and they cannot be excluded from any part of the property. In other words, a co-tenant cannot exclude other co-tenants from portions of the property.

Although the shares each tenant in common possesses may not be equal, all of the tenants in common are entitled to use or possess the entire parcel of land. Additionally, all of the tenants in common do not have to take possession at the same time.

A tenancy in common does not have a right to survivorship, unlike a joint tenancy. Most jurisdictions operate with the presumption that if a property is held by more than one individual, it is a tenancy in common.

Additionally, most courts will presume that a devise to two or more individuals who are not married creates a tenancy in common. This also applies if the type of joint possession of the property is unclear.

An individual’s interest in a tenancy in common may be transferred at any time during their life. It may also be devised to another individual or individuals after their death.

How Can I Terminate My Tenancy in Common?

There are several different options for terminating a tenancy in common. Although the laws vary by state, tenants in common may terminate their tenancy in ways which include:

  • All of the tenants in common entering into an agreement;
  • By a court-ordered partition, which is either a physical division of the land or a partition by sale; or
  • By ouster, meaning any act which unlawfully deprives a tenant in common of their share of the property.

The tenants in common may agree to sever their tenancy in common. It is important to note that it can be difficult to divide the property into shares which reflect the value of the percentage of the property which was owned by each co-tenant.

If the tenants cannot agree upon how to divide their property, they may terminate the tenancy in common by requesting a judicial partition of the property. This can be done by a partition in kind, where the physical division of the property is determined by the court, or by a partition by sale, which forces the property to be sold and each co-tenant receives a share of the profits.

In addition, a tenancy in common may be terminated by an ouster. An ouster, under the laws of a tenancy in common, is a wrongful dispossession or exclusion by one of the tenants of their co-tenant or co-tenants from the common property they are all entitled to possess.

It is important to note that each state has a different law regarding what constitutes ouster. Ouster terminates the tenancy in common.

If, however, the individual wants to give up their interest in the property, they can transfer their interest in the tenancy in common to another individual by gift or sale. This substitutes a third individual for the individual who sold their share of the tenancy in common.

In the State of California, ouster is conduct of a co-tenant which is open, notorious, and unequivocal in character that shows their intent to exclude another co-tenant from gaining or sharing in possession of the jointly owned property. Ouster is also an act of ownership that is open, notorious, and unequivocal in character and gives notice to the co-tenant that they are out of possession and the other co-tenant intends to oust them.

Ouster may be accomplished by using a diversity of methods which range from invoking the statutory notice procedure for an ourster to one tenant claiming the whole property for themselves and not permitting the other tenants to have title or by not permitting them to enter the property.

Who Can Commit Ouster?

Outster may be committed by a joint owner of property against the other joint owner or owners. It may also be committed by any individual who ousts a true owner from their property.

Why Have I Been Ousted?

Aside from simple malice, there are several reasons why an individual may have been ousted from their property. The first may be an ouster as a way to terminate a joint tenancy.

Ouster can be used by a joint owner of a property to terminate a joint tenancy. If, however, a co-tenant ousts another co-tenant from the joint property, they may be able to sue for fair rental value or for a judicial partition.

Additionally, ouster can be used to adversely possess a property. By ousting an individual from their property, the ouster will attain exclusive, open, and hostile possession of the property.

If a property owner in California holds legal title to a piece of land, they are presumed to be the owner unless and until the adverse possessor provides enough compelling evidence and arguments to convince the court to provide the trespasser with ownership. Adverse possession is different from having an easement to use on another individual’s property.

An example of an easement may be when a neighbor uses another property owner’s driveway to access their own property. An easement is a shared right on a piece of property, where adverse possession causes a shift in title as well as the corresponding right to exclude other individuals from the property.

The individual who is committing the ouster may be seeking to acquire legal title to a property through adverse possession. Fortunately, in most cases, adverse possession takes between 10 to 20 years, depending on the state. Therefore, an individual may be able to reclaim possession of their land through a judicial action.

How Do I Prove Ouster?

In some cases, the issue is not if there was an ouster but if a co-tenant can prove that they were, in fact, denied admittance from the entire property. In California, for example, an ouster must be proven by adverse actions, such as:

  • Claiming the whole property for themselves;
  • Denying the title to the co-tenant; or
  • Refusing to permit the co-tenant to enter.

In one California case, the court found an ouster occurred where there was:

  • A denial of title;
  • The locks were changed;
  • Signs saying “No Trespassing” were posted on the property; and
  • The co-tenant was denied admittance to the property.

Can a Lawyer Help Me Get Back on My Land?

In some cases, a real estate attorney may be able to help you get back on your land as well as protect your legal and property rights in the process. Your lawyer can review your case, guide you through the judicial process of eviction if necessary, or assist you in suing a joint owner of the property for rent or for a judicial partition.