Olivas v. Olivas

780 P.2d 640



Before a tenant in common can be liable to his cotenants for rent for the use and occupation of the common property, his occupancy must be such as amounts to a denial of the right of his cotenants to occupy the premises jointly with him, or the character of the property must be such as to make such joint occupancy impossible or impracticable.


Parties were married, and eventually divorced, pursuant to a divorce decree filed by the wife. Under this decree, the court divided the couple's marital property, and held that the wife did not have to pay the husband for any constructive ouster that may have occurred as a result of his leaving the house during and after the divorce. A a joint tenant of the property, the husband appealed from this ruling.


Is a joint tenant liable for rent to the other joint tenant when the couple divorces and a constructive ouster occurs?


Yes, when a couple divorces and a constructive ouster occurs, the remaining spouse is required to pay rent to the ousted spouse.


On appeal, the appellate court affirmed the lower court's ruling. The Court found that there was substantial evidence that the husband's purpose in leaving the community residence was to live with a girlfriend and his departure was the reason that the wife filed for a divorce. The husband maintained that after the divorce, he used his salary to pay taxes and the community now owed him for such payments. Further, the court found that although the husband may have increased the value of the wife's property and would ordinarily be entitled to a credit, the value of the increase was de minimus and failed to justify the district court's reconsideration.

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