Owning property with others can be a messy business, especially when one owner uses the property and the other owners do not. Other problems can include payment of expenses, sharing of rent, and whether (and on what terms) the property should be sold.
A common question is whether one co-owner of the property has to pay rent to the other co-owners of the property, where the first co-owner lives in the property to the exclusion of the other co-owners. The Florida Supreme Court, in Barrow v. Barrow, 527 So.2d 1373, set forth the rule:
In conclusion, we hold: (1) the possession of a tenant in common is presumed to be the possession of all tenants until the one in possession communicates to the other the knowledge that he or she claims the exclusive right or title and there can be no holding adversely or ouster by the cotenant in possession unless the adverse holding is communicated to the other; (2) where one cotenant has exclusive possession of lands and uses the lands for his or her own benefit and does not receive rents or profits therefrom, such a cotenant is not liable or accountable to the cotenant out of possession unless he or she holds adversely or as a result of ouster or its equivalent; and (3) when a cotenant in possession seeks contribution for amounts expended in the improvement or preservation of the property, that claim may be offset by cotenants out of possession by the reasonable rental value of the use of the property by the cotenant in possession to the extent it has exceeded his or her proportionate share of ownership.
Lets break down the Barrow holding into the different scenarios it expresses.
Scenario #1: Co-owner occupies entire property but does not exclude others.
Result: The owner in possession does not owe rent to the other owners. If the tenant in possession of the property seeks contribution for improvements or preservation, the reasonable rental value can be offset against the amount the other owners would owe.
Scenario #2: Co-owner occupies entire property and communicates to the other owners that they may not also possess the property.
Result: The owner in possession owes reasonable rent to the other owners, but only upon proof of “holding adversely or ouster.” But what is ouster? As explained in Atkinson v. Anderson, 77 So.3d 768 (4th DCA 2012):
On the substantive issue, our supreme court determined that a co-tenant must have communicated his or her intention to exclusively possess the property in order to constitute an ouster of the other co-tenant. In Barrow v. Barrow, 527 So.2d 1373, 1376 (Fla.1988), the court, quoting Stokely v. Connor, 69 Fla. 412, 440–41, 68 So. 452, 459 (Fla.1915), defined ouster as follows:
[A] tenant in common, to show an ouster of his cotenant, must show acts of possession inconsistent with, and exclusive of, the rights of such cotenant, and such as would amount to an ouster between landlord and tenant, and knowledge on the part of his cotenant of his claim of exclusive ownership. He has the right to assume that the possession of his cotenant is his possession, until informed to the contrary, either by express notice, or by acts and declarations that may be equivalent to notice.
The court reiterated that holding adversely could not occur unless “ ‘manifested or communicated’ ” to the other co-tenant. Barrow, 527 So.2d at 1375 (quoting Coggan v. Coggan, 239 So.2d 17, 19 (Fla.1970)). Mere possession by one co-tenant, even for a lengthy time, could not be considered an ouster of the other co-tenant without communication of exclusive possession.
So words of exclusive possession, such as “I am claiming possession of this property for myself and you shall not enter,” should be sufficient. Acts of exclusive possession can also constitute ouster, such as brandishing a weapon if another co-owner attempts to enter the property.
Scenario #3: Co-owner has exclusive possession by court order or agreement and seeks reimbursement for improvement and preservation.
Result: All owners of property are required to share in the expense of maintaining the property, whether they occupy the property or not. As explained in Brandt v. Brandt, 525 So.2d 1017, (4th DCA 1988):
As co-tenants each is ultimately liable for his or her proportionate share of the obligations of the property, such as taxes and mortgages. Generally, if one co-tenant pays an obligation for which all are liable, he is entitled to have the other co-tenant pay his proportionate share. 8 Fla.Jur., Co-tenancy, § 12.
But if the excusive possession is pursuant to agreement or court order, the rent-offset rule might not apply. As explained in Goolsby v. Wiley, 547 So.2d 227, (4th DCA 1989):
An argument could be made that where a property settlement agreement or final judgment permits one tenant to have exclusive occupancy this operates as an eviction or constructive ouster of the other tenant, who should thereby have a claim for the fair rental value. We think that the scant authority and better reasoning support a contrary position. Where the parties have agreed that one should have exclusive possession and there is no provision in the agreement for rent, it seems inappropriate to subsequently engraft such a requirement on the contract made by the parties. By the same token, a judgment which awards exclusive possession to one party is based upon certain, known facts and if rent had been contemplated and thus placed in the balance, the court presumably would have said so.
We therefore distinguish Barrow and hold that where exclusive possession by a cotenant is sanctioned by court order or agreement of the parties, there can be no offset (of one-half of the fair rental value of the property for the term of the lawful possession) against the claim of that tenant for reimbursement from the proceeds of a sale of the property for necessary and proper expenses incurred in the preservation and protection of the property.
But in another domestic relations case, the Court declined to extend the Goolsby decision to a domestic violence situation, even where a final judgment had been issued. In Wolf v. Wolf, 979 So.2d 1123 (2nd DCA 2008), the Court held:
For these reasons, we decline the Wife’s invitation to extend the rationale of Kelly and Goolsby to these facts. Instead, we hold that silence on the issue of rental value in a final judgment for protection against domestic violence that awards exclusive possession of a marital residence does not preclude an award of rental value in a future final judgment of dissolution of marriage. Only if the final judgment of dissolution is silent on the issue will a later award of rental value be prohibited.
