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When a co-tenant in possession seeks contribution for amounts expended in the improvement or preservation of the property, his claim may be offset by the value of his or her use of the property which has exceeded his or her proportionate share of ownership. Where one owner has enjoyed the occupancy and in any way seeks the assistance of a court in obtaining contribution from others in respect of improvements or protective expenditures made, he is ordinarily charged, by way of offset, with the reasonable value of his occupancy in excess of his proportionate share, even though he would not otherwise be liable; and similar adjustments are commonly made in partition suits generally.
Petitioner James Barrow owned property and built a home on it prior to marrying respondent Donna Barrow. As a result of their divorce, respondent was awarded an undivided one-half interest in the property as alimony. Respondent moved her family to Idaho immediately after separating from the petitioner. Several years later, respondent filed a complaint seeking a partition of the property. Petitioner filed a counterclaim for one-half of the expenses expended in maintaining the property. Respondent then sought one-half of the fair rental value from the date of the entry of the divorce judgment to the date of the present proceeding. Before the trial court, petitioner asserted that respondent did not object to his sole occupancy; that she was not excluded from the premises; that he did not hold the premises adversely or hostilely to her title; and that he had never refused her access to the property. The trial court considered the claim of the respondent as an independent claim and not solely as a setoff. It concluded that respondent was entitled to one-half of the fair rental value and that petitioner was entitled to one-half of the taxes and insurance premiums paid for the same time period. The appellate court affirmed, but acknowledged a conflict and certified the case for review.
Was respondent’s claim an independent claim and not a setoff, thereby entitling respondent to one-half of the fair rental value?
The Court noted that the possession of a tenant in common was presumed to be the possession of all tenants until the one in possession communicated to the other the knowledge that he or she claimed the exclusive right or title. According to the Court, where one co-tenant had exclusive possession of lands and used the lands for his or her benefit and did not receive rents or profits therefrom, such a co-tenant was not liable or accountable to the co-tenant out of possession unless he or she held the property adversely or as a result of ouster or its equivalent. Moreover, when a co-tenant in possession sought contribution for amounts expended in the improvement or preservation of the property, that claim may be offset by co-tenants out of possession by the reasonable rental value of the use of the property by the co-tenant in possession to the extent it has exceeded his or her proportionate share of ownership. Applying these principles, the Court quashed the decision of the appellate court and held that respondent's recovery was limited to the reasonable rental value solely as an offset against the claim of petitioner for the costs of maintaining the property. The amount of recovery was limited to the amount of petitioner's claim because the rental value exceeded his claim.