Daily Development for Tuesday, December 21, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

TENANCY IN COMMON; ADVERSE POSSESSION. The presumption that a cotenant in exclusive possession is holding for the common benefit of his cotenants, and not adversely to them, rebuttable, and evidence of claim of exclusive ownership, coupled with the adverse claimant's sale and leasing of portions of the property, can be sufficient to rebut.

Wright v. Wright, 512 S.E.2d 618 (Ga. 1999).

Harvey and his son Aitchey acquired a farm in 194. Each advanced $200 toward the purchase price, and there was a twenty year note. Father never paid any purchase installments or real estate taxes as to the farm, and he died in 1941.

In 1943, the probate court awarded widowed mother and her three minor children the deceased Father's onehalf interest in the farm. Widow and her minor children lived on the farm for years, with the last one leaving in 1950. Over time, Aitchey and his wife "worked" the land, made substantial improvements, paid all real estate taxes and paid off the purchase money loan.

Subsequent to 1950, at different times, Aitchey sold and conveyed a portion of the farm, in fee, and various easements over, upon and across the farm. Aitchey's siblings admitted that, they knew that Aitchey claimed that he was the sole owner of the farm, although they knew that he was not. They never asserted a contrary claim against him, as he was overbearing and tyrannical, and they would have feared for their safety.

The siblings decided to wait until Aitchey died before attempting to settle the ownership issue. After Aitchey's death, Aitchey's widow and children requested that siblings execute quitclaim deeds as to their interests in the farm, which they refused to do. Aitchey's widow and children instituted quiet title action.

Under applicable Georgia statute, adverse possession against a cotenant requires an actual ouster, exclusive possession after demand, and notice to the cotenant of adverse possession. The court noted that there is a presumption that a cotenant in exclusive possession of jointly owned property is holding for the common benefit of his cotenants, and is not holding adversely to them, that presumption may be rebutted.

The court commented that, although exclusive possession, the making of improvements and the payment of taxes, standing alone, do not establish an ouster, unequivocal acts, such as selling or leasing all or a portion of the property, may be sufficient to establish prescriptive title. In addition, the notice requirement may be satisfied by unequivocal acts, open and hostile, pursuant to which notice is presumed. The court found that Aitchey's prior conveyances of a portion of the farm, in fee, which was recorded, as notice to the cotenants of Aitchey's adverse possession and was such an exceptional fact as to constitute an arguable ouster. That was all that was needed, as the only issue resolved by the court was the denial of a directed verdict motion by the siblings. The court simply held that Aitchey's activities made out a factual issue for the jury that the statutory presumption was rebutted.

Comment 1: There can be no argument with the outcome here. Clearly, where Aitchey communicated to his siblings that he claimed ownership, and in every way acted as an owner, there was sufficient grounds for an ouster.

Comment 2: The editor does take issue, however, with the proposition that selling or leasing the property, in and of itself, is sufficient evidence of adverse possession. Certainly the possessing cotenant has the right of possession, and can lease that right. There is nothing inconsistent with a cotenancy ownership if one cotenant grants exclusive possession to a stranger through a lease. Only if the tenant commits an act of ouster against the other cotenants, should they desire to assert possession, would an adverse claim arise.

With respect to sale, particularly sale where the selling cotenant warrants the title, there certainly is an argument to be made that notice of such sale would constitute notice of an adverse claim. But it is the notice, and not the sale itself, that ought to be studied. The mere possession of the property by a stranger may be construed by cotenants as the result of a perfectly proper lease. The court does not draw these distinctions, and a quick look at the authorities it relies upon indicates that it may be extending the authority in this regard. This is unfortunate, because the facts of the case don't require any such extension. Clearly there was evidence that overall Aitchey claimed ownership, and this issue should have gone to the jury.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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