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Chinn v. Chinn - 19 Va. Cir. 430 (Cir. Ct. 1990)


At common law, one co-tenant who used the common land exclusively was not required to account to other co-tenants unless his use resulted in an ouster or exclusion of his co-tenants. Now, however, an accounting may be had against a co-tenant for receiving more than comes to his just share or proportion. Va. Code Ann. § 8.01-31.


Upon the death of a life tenant on February 29, 1988, four sibling became co-owners in fee as equal tenants in common of real estate in Stafford County on which was located a residence. The residence was vacant from the death of the life tenant until May 1989, at which time one co-tenant with the concurrence of two others, permitted his niece and her husband, the Schauls, to occupy the residence without payment of rent in cash during the pendency of the partition suit. The fourth co-tenant, Ralph McCalley Chinn, filed a partition suit against the other other co-owners and demanded accounting of the property. He was excepted to a Commissioner's Ruling that he is not entitled to an award out of the proceeds of sale for his share of a fair rental value from May, 1989, to date of sale "because he did not agree to the use of the property by the Schauls." The 3 co-tenants allowed the Shauls to occupy the residence without payment of rent in cash because the residence was deteriorating and subject to vandalism, in consideration of which the residents maintained and protected the structure. 


Was the Exception to the Commissioner's Report proper?




The Exception to the Commissioner's Report was overruled. The court held that whether or not plaintiff agreed with defendants' actions was not relevant because they had the right and power to enter into the agreement with the relatives, and defendants were not liable for an accounting under Va. Code Ann. § 8.01-31 because no defendant was ever in physical possession of the property or actually received any rent or profit from same. There was nothing for which to account. The property had been vacant, and the occupancy thereafter protected, maintained, and improved it. Had defendants not acted, they could have been liable to plaintiff for permitting waste under Va. Code Ann. § 55-212.

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