Daily Development for
By: Patrick A.
Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
prandolph@cctr.umkc.edu
Readers are encouraged to respond to or criticize this
posting.
COTENANCIES; PARTITION; OCCUPYING COTENANT: In division of
proceedings following partition sale, cotenant who had been in sole occupancy
of the property was not entitled to be reimbursed for insurance, pest control,
and replacement of water heater, but was entitled to be reimbursed for taxes she had paid while in possession..
The court cites an
The owner of a certain residence died, and his widow and
daughter inherited as cotenants. The
widow continued to reside in the property for about three years, when the
daughter sought a partition. The property ultimately was sold, and in the
partition action the widow asked that she be credited with the cost of certain
maintenance on the property and with the payment of taxes.
One precedent case, in 1954, had concluded that an occupying
cotenant was not entitled to any reimbursement for maintenance expenses or
taxes, and in fact was not even entitled for any reduction in the principal
amount of the mortgage, since "the rental value for the use and occupation
by the tenants in possession was a complete offset."
Another, earlier case, had
concluded that an occupying cotenant was entitled to a credit for the payment
of taxes, but not fore maintenance or insurance. This court characterized the taxes as a
"public charge" and thus differentiated them from the other expenses.
The court concluded here that the occupying cotenant could
recover for the taxes, but not for the rest of the expenses. It did not discuss the issue of rental value.
Comment: The 1954 case, Fundabark
v. Cody, 72 So. 2d 710, involved a hotel property that
had been inherited by certain family members.
Two of them continued to operate the property for a while, and then the
others sought partition and an accounting for the profits of operation. The operators responded that in fact, taking
into account reduction of the mortgage principal and payment of taxes, the
hotel had operated at a loss, and sought reimbursement for the operation, plus
a payment for their services as operators.
The court reiterated the general rule that a tenant in
possession that has not excluded his other cotenants need not account for
profits made from operations other than rental of the property to third persons
(which does not describe a hotel operation).
On the other hand, the court acknowledged, cotenants who pay taxes or reduce the mortgage principal may be
entitled to an adjustment in their favor at partition. But if cotenant seeking reimbursement for these expenses has
been in sole occupancy, the court held,
the cotenant's claim will be reduced by the occupancy value during that
cotenant's tenure.
The earlier case that the court cited, and that Fundabark also cited, did unequivocally permit the occupying cotenant to
recover for taxes, which the court characterized as a "public
charge." It was a complicated case,
involving a tax foreclosure during the Depression that was held invalid, but
nevertheless the principle with respect to taxes seemed quite clear.
The court's adoption of a rule permitting an occupying
cotenant to recover for taxes seems to repudiate that aspect of Fundaburk that holds that occupancy rent can offset a right
to recover for taxes. The case, being a
court of appeals decision, cannot expressly overrule the Alabama Supreme Court
in Fundaburk, but appears to do favor an alternate
rule also appear in Alabama Supreme Court precedent.
Comment 2: In their hornbook The Law of Property (2nd Ed.
West 2000) at Sec. 5.9, Stoebuck and Whitman take the
position that the majority rule is that a tenant who is in exclusive possession
(but without an ouster of the other cotenants) is not entitled to any carrying
charges, including taxes, except to the extent that they exceed the reasonable
value of occupancy. This statement appears
to be based upon the well respected multi-author treatise The American Law of Property (Little
Brown 1952), section 6.17, as the statement is virtually verbatim and cites the
same authorities. Powell on Real
Property, again, has virtually verbatim language, suggesting that it was Powell
who wrote this part of The American Law of Property, or, if someone else,
either that person or Powell was guilty of plagiarism. Stoebuck and
Whitman may also have relied upon Powell, and I'm not suggesting they plagiarized
- the point is a small one and there aren't that many ways to say it. Powell cites the Fundaburk
decision as an authority supporting this proposition, which it does, but note
that Fundaburk may have been abandoned here.
Thompson on Real Property (Thomas Edition), at section
32.07, disagrees with the position taken by Powell and the other above
authorities, and maintains that the proper interpretation of the relationship
should be that an occupying cotenant is entitled to receive contribution for
payment of taxes. This language appears
to date back to the original author, and cites little authority.
Comment 3: The
editor's view is, first,
that a clear rule is best here.
We don't want to be analyzing in each case the relationship of the cotenants
and the nature and degree of permission given for any given possession.
And if there is to be a simple standard rule, the editor
concludes that it should be that all cotenants are viewed as having an
obligation to pay taxes as a part of their ownership of the property. The decision to permit a single cotenant to
have sole occupancy is a voluntary one, and such a decision ought not to excuse
the other cotenants from their lawful obligation to pay taxes unless the
parties agree specifically that the occupying cotenant's possession carries a
value that supports imposing the tax liability entirely on that cotenant. Thompson is right. Powell is wrong.
Where is the case law? Certainly Powell cites the most cases, but often the statements relating to this issue are contained in dicta and uncertain as precedent...
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