Ouster of tenant in common shown from very long exclusive possession

 

 

The Massachusetts Land Court has ruled that a married couple that owned a 1/3 interest as tenants in common with other owners lost their interest by adverse possession to their cotenants because their predecessors in interest had failed to use the area after they were “ousted” by their cotenants. Kane v. Harrington, 30 LCR 579, 2022 Mass. LCR LEXIS 90, 2022 WL 4533930 (Mass. Land Ct. 2022). In general, co-owners do not lose a commonly-held property interest merely because they do not use it. All co-owners have the right to possess the entire property so doing so does not constitute a trespass against other co-owners. Only when a tenant in common actually excludes another cotenant from the property (or tells them they are not welcome to use the property and does not allow them access) does the statute of limitations for adverse possession begin. That moment of “ouster” does start the clock running and the interest can be lost to the possessory tenant unless the ousted tenant brings a claim for partition or a right to re-enter the premises.

 

Typically, ouster requires notice to the cotenant that they are being denied access to the property since mere nonuse does not mean an owner has abandoned their interest. And mere use by tenants in possession does not suggest an intent to exclude a co-owner from possession. What acts are sufficient to show ouster?

 

Kane v. Harrington involved three continguous lots that had all been given one-third ownership of a strip of land between two of the lots to access a brook to draw water for domestic purposes from a well located near the brook. Only two of the owners used the strip with one of them covering part of it with a driveway.

 

The court held that ouster may be shown by “inaction by the cotenant sought to be dispossessed,” quoting Allen v. Batchedler, 459 N.E.2d 129 (Mass. App. Ct. 1984). While acknowledging that “sole possession by one tenant in common is not in itself adverse to the interest of a nonpossessory tenant,” Chief Justice Shaw had ruled in an 1832 case that “a long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a jury may and ought to infer actual ouster. There need be no ‘turning out by the shoulders’ to manifest a decisive intent to occupy to the exclusion of the absent cotenant,” citing Rickard v. Richard, 30 Mass. 251, 253–254 (1832); Doe v. Prosser, 1 Cowp. 217, 218, 98 Eng. Rept. 1052 (1774).

 

In this case, the only proof of ouster was that the predecessors in title to the co-owners had not used the strip of land in any way from 1960 to 2018 (58 years) and had not paid taxes on it as their co-owners had done.

 

The court’s ruling adopts a version of the ouster doctrine that robs it of much of its force. In effect, all that happened was that two of the one-third interest owners exclusively used the property without any notice to the other one-third owners that they were not welcome to use the commonly-owned property. In a case not involving co-ownership, that is all that is required because exclusive possession is presumed to be nonpermissive and a trespass against the record owner. That is not the case with commonly-owned property since possession of the whole is consistent with the rights of any owner and a choice not to use the property is not sufficient to constitute abandonment on the part of an owner of an interest as a tenant in common. The court’s ruling makes it much easier to claim adverse possession against a cotenant because ouster is proved merely by showing that a cotenant has not possessed or used the property.

 

Typically, courts do not find ouster of tenants in common absent what is called an “actual ouster.” 4 Thompson on Real Property, Thomas Editions, §32.07. That usually means “a distinct assertion of a right hostile to the owner and brought home to him.”

Pitson v. Sellers, 613 N.Y.S.2d 1005, 1006 (App. Div. 1994). That may occur, for example, if a tenant in common purports to transfer a 100% interest in the property to a third party who then treats the entire property as their own. But, as Kane v. Harrington shows, some courts may find a very long possession to be exclusive and adverse to a tenant in common sufficient to constitute ouster and allow the statute of limitations to begin running for adverse possession.