Carr v. Deking

52 Wash. App. 880, 765 P.2d 40 (1988)

 

RULE:

It is well settled that each tenant in common of real property may use, benefit and possess the entire property subject only to the equal rights of cotenants. Thus, a cotenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease. The nonjoining cotenant is not bound by this lease of the common property to third persons. The lessee steps into the shoes of the leasing cotenant and becomes a tenant in common with the other owners for the duration of the lease. A nonjoining tenant may not demand exclusive possession as against the lessee, but may only demand to be let into copossession. 

FACTS:

The cotenant, tenant-lessor, and lessee had an oral agreement regarding the lease of the tenants in common property. Subsequently, the lessee entered a written lease with the tenant-lessor without the agreement of the cotenant. The cotenant filed an ejectment claim against the lessee. The trial court held that the cotenant could not eject the lessee who had leased land from a tenant-lessor in common with the cotenant. The case was appealed to the Court of Appeals of Washington. 

ISSUE:

Can a tenant-lessor lease his undivided interest in land without securing the consent of a cotenant?

ANSWER:

Yes.

CONCLUSION:

The court affirmed the summary judgment granted to the lessee on the cotenant's ejectment claim because the tenant-lessor could lease his undivided interest in land without the consent of the cotenant, and the lessee stepped into the tenant-lessor's shoes as a tenant in common for the duration of the lease. Further, the non-joining cotenant's sole remedy was partition of the land. The court also affirmed the striking of the cotenant's affidavit in support of his motion for summary judgment because his lay person testimony that the tenant-lessor was mentally incompetent was merely unsupported conclusional statements that could not be considered in a motion for summary judgment. The trial court's clarification of the relationship between the cotenant and lessee was remanded because the cotenant had the option of choosing, until partition, whether he was bound by the oral lease arrangement or the written lease arrangement.

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