Ownership of real property - Relations among cotenants

Learning Outcomes

This article explains the legal relationship among cotenants in concurrently owned real property, including:

• How different forms of concurrent ownership (tenancy in common, joint tenancy, tenancy by the entirety) structure possessory rights among cotenants and how those rights appear in MBE fact patterns
• The scope and limits of each cotenant’s right to possess, use, license, and lease the whole property, and when exclusive possession becomes an actionable ouster triggering rent or damages
• The rules governing allocation of rents, profits, and necessary carrying costs (taxes, mortgage payments, insurance, and repairs), and how contribution and equitable liens operate in exam-style disputes
• How voluntary improvements, waste, and exploitation of natural resources affect cotenants’ financial rights during co-ownership and at partition, including credits, charges, and remedies
• The mechanics and consequences of partition, accounting, and adverse possession between cotenants, and how to distinguish these remedies quickly under time pressure on multiple-choice questions
• Common traps tested on the MBE—such as confusing exclusive possession with ouster, assuming automatic reimbursement for improvements, or overlooking tenancy-by-the-entirety limits on unilateral action

MBE Syllabus

For the MBE, you are required to understand ownership of real property and the relations among cotenants, with a focus on the following syllabus points:

• The equal right of each cotenant to possess and use the entire parcel
• Entitlement to rents and profits from third parties and from a cotenant’s use
• Allocation of and contribution for taxes, mortgage payments, and necessary repairs
• Rules regarding voluntary improvements and their treatment at partition
• Liability of a cotenant for waste and for failure to preserve the property
• Ouster: what counts as exclusion and its consequences (rent, damages, adverse possession)
• Partition in kind and by sale, and agreements restricting partition
• Special features when spouses are cotenants (tenancy by the entirety)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Two cotenants own a house as tenants in common. One moves out; the other lives in the house alone for three years. The absent cotenant demands rent. No one was ever denied entry. Must the occupying cotenant pay rent?
   1. Yes, because she had exclusive possession
   2. Yes, because the cotenants own equal shares
   3. No, because there was no ouster
   4. No, because cotenants are never liable for rent to each other
2. A and B are cotenants. A pays all of the property taxes and mortgage interest for several years; B pays nothing. Which statement is most accurate?
   1. A has no right to reimbursement because A chose to pay
   2. A may seek contribution from B for B’s proportionate share
   3. B must reimburse A only if A obtained B’s prior written consent
   4. A can recover from B only after proving B committed waste
3. A, B, and C are cotenants. A changes the locks and tells B and C they are no longer allowed to enter the property. What is B and C’s best immediate remedy?
   1. Action for partition only
   2. Action for ejectment or possession based on ouster
   3. Action for waste
   4. Action to terminate A’s ownership interest
4. A cotenant installs an expensive new kitchen that increases the home’s market value. Which statement best reflects the general rule?
   1. Other cotenants must immediately reimburse their share of the cost
   2. The improving cotenant can never recover anything for the improvement
   3. The improving cotenant may receive credit for the value added at partition
   4. The improving cotenant may charge rent to the others until reimbursed

Introduction

When two or more people simultaneously own interests in the same parcel of real property, they are cotenants. The most common forms of cotenancy tested on the MBE are tenancy in common, joint tenancy, and tenancy by the entirety. Although these forms differ in important ways (for example, whether there is a right of survivorship), the baseline rules governing relations among cotenants are largely the same.

Those relations center on four recurring themes:

• Who may possess and use the property, and on what terms
• How income and expenses are shared
• What happens when one cotenant unilaterally changes the property (repairs or improvements)
• What remedies exist when cotenants cannot get along

Key Term: Cotenancy
Concurrent ownership of real property by two or more persons, each holding an undivided interest in the whole property rather than a right to a physically separate portion.

Key Term: Tenancy in Common
The default form of concurrent ownership. Each cotenant has a separate but undivided interest that is freely transferable, devisable, and inheritable, with no right of survivorship.

Key Term: Joint Tenancy
A form of cotenancy where cotenants typically have equal shares and a right of survivorship; when one dies, the others automatically take that share. Created only when specified requirements are met and often severed by unilateral conveyance.

Key Term: Tenancy by the Entirety
A form of joint ownership available only to married spouses in some states, featuring a right of survivorship and strong protection against unilateral conveyance or partition by one spouse.

Most MBE questions on this topic assume either a tenancy in common or a joint tenancy. The analysis of rights and duties among cotenants is usually the same for both, unless the question specifically raises survivorship or unilateral conveyance issues.

Key Term: Adverse Possession
Acquisition of title by possessing property for the statutory period in an open, notorious, actual, exclusive, and continuous manner that is hostile to the true owner’s rights.

Rights of Possession and Use

Each cotenant, regardless of the size of their fractional interest, has an equal right to possess and use the entire property. No cotenant owns a particular room, field, or floor; each owns an undivided interest in every square inch.

Key Term: Right of Possession
The right of each cotenant to occupy and use the whole property, consistent with the nature of the premises and the equal rights of the other cotenants.

Key consequences:

• A cotenant may enter, remain on, and use any part of the property at any reasonable time.
• A cotenant may not exclude any other cotenant from any part of the property.
• The fact that cotenants own unequal shares (e.g., A owns 75%, B owns 25%) does not change their equal right to possess the whole.

Cotenants may, by agreement, decide that one will occupy a particular portion, or that one will operate a business there, but such arrangements do not usually change the basic legal right of all cotenants to possess the whole parcel unless they expressly agree otherwise.

The right to possess includes the right to make ordinary, reasonable uses of the property that are consistent with its character (e.g., living in a house, farming farmland). A cotenant may also grant a license to a guest or family member to occupy with them, because a license does not transfer any estate in land. But a license or lease that substantially interferes with another cotenant’s right to possess may give rise to remedies such as an action for accounting, or, in extreme cases, ouster (discussed below).

Key Term: Ouster
Wrongful exclusion of a cotenant from possession, usually by physically barring entry or expressly denying the other’s right to use the property.

A frequent trap on the MBE is confusing exclusive possession with ouster. A cotenant who is simply the only one living on the property is not thereby committing ouster. Exclusive possession is often lawful because every cotenant has the right to possess. Ouster requires some act that denies or repudiates the other cotenant’s right to possess—such as changing locks and refusing a demand for entry, or explicitly telling the other cotenant that they no longer have any rights.

Some courts recognize a narrow concept of “constructive ouster” in situations where co-occupancy is practically impossible (for example, between spouses in severe conflict in a small home), but the safer assumption on an MBE question is that ouster requires clear denial of a cotenant’s possessory rights.

Key Term: Constructive Ouster
A situation in which joint occupancy is so impracticable (for example, because of extreme hostility or domestic violence) that the law treats one cotenant as effectively excluded even without physical expulsion. This is a minority concept and rarely central on the MBE.

Entitlement to Rents and Profits

The right to use is separate from the right to collect money arising from the property. Two recurring questions are:

• What happens if a cotenant receives rent or income from a third party?
• Is a cotenant in possession required to pay rent to cotenants who are not in possession?

Rents from Third Parties

If any cotenant leases all or part of the premises to a third party, the rent belongs to all cotenants in proportion to their ownership shares. The cotenant who receives the rent must account to the others.

• Example: A and B are each 50% cotenants. A leases the entire property to T for $1,000/month. A must hold$500 for B (subject to appropriate credits for expenses).

Even if only one cotenant signed the lease, they can grant the lessee only what that cotenant has: the right to possess as a cotenant. The lessee essentially steps into the lessor-cotenant’s shoes and shares the right to possess the whole with the other cotenants. The non-leasing cotenants generally cannot eject the lessee, because the leasing cotenant had the right to put someone into possession.

If the lease covers only a part of the premises (e.g., one apartment in a multi-unit building), the rent is still shared according to ownership percentages, not according to the fraction physically occupied by the tenant, unless the cotenants agree otherwise.

The leasing cotenant is not required to get consent from the other cotenants before leasing their own undivided interest, but they cannot impair the others’ core possessory rights. If a lease purports to give a tenant exclusive possession of the entire property, leaving no room for other cotenants, the others may be able to claim an ouster by the leasing cotenant and seek fair rental value, discussed below.

Profits from Business Use or Resource Extraction

If a cotenant operates a business on the property (e.g., farming, a store), the analysis is more fact-specific. Generally:

• A cotenant in possession need not share profits solely attributable to personal labor, skill, or capital.
• However, if the cotenant exploits natural resources (timber, minerals, oil) in a way that depletes the estate, other cotenants may demand an accounting and share in net profits, or claim waste if the use is unreasonable.

If the property has historically been used for extraction (e.g., an existing mine), continued extraction may be reasonable and not wasteful. But opening a new quarry or strip-mining valuable timber from a previously wooded recreational property can be voluntary waste.

In an accounting action, courts typically look to net profits: gross receipts minus appropriate expenses. The cotenant who managed the enterprise may be entitled to deduct reasonable operating expenses but not a “salary” for personal services unless the cotenants agreed to such compensation.

Rent Owed by a Cotenant in Possession

Absent ouster, a cotenant in exclusive possession does not owe rent to the other cotenants. This is true even if the non-possessing cotenants voluntarily move out, live elsewhere, or choose not to use the property.

Rent becomes payable to the other cotenants only if:

• There has been an ouster; or
• There is an agreement among the cotenants for one to pay rent; or
• A court orders compensation in connection with partition or an accounting.

Thus, on the MBE, exclusive possession is not enough. Look for (i) a demand by the out-of-possession cotenant to share possession, and (ii) a refusal or act of exclusion, before imposing rent liability.

Worked Example 1.1

Two siblings own a house as tenants in common. One sibling moves out and buys another home. The other sibling lives in the original house alone for five years. The sibling who moved out demands rent for her share. There was never a demand to return or a refusal of access. Is she entitled to rent?

Answer:
No. A cotenant in exclusive possession does not owe rent to the others unless there has been an ouster or an agreement to pay rent. Here, the out-of-possession sibling left voluntarily and was never denied entry. Voluntary absence, without exclusion, does not create a right to rent.

Worked Example 1.2

A and B own an office building as tenants in common, each holding a 50% interest. Without consulting B, A leases the entire building to Tenant for $10,000 per month, and Tenant pays all rent directly to A. A also pays$2,000 per month in property taxes and insurance. B sues A for an accounting. How should the court allocate the rent?

Answer:
A must account to B for B’s 50% share of the net rental income. Starting with $10,000 in rent, A may claim appropriate credits for carrying costs that A actually paid (here,$2,000). The net is $8,000; B is entitled to$4,000 per month. A may keep the remaining $4,000 as A’s own 50% share of the net rent.

Sharing of Expenses

Although possession and rent depend heavily on ouster, the sharing of expenses does not.

Cotenants must share necessary carrying costs and necessary repairs.

Key Term: Carrying Costs
Ongoing expenses necessary to maintain ownership of property and prevent loss of title or security, such as property taxes, mortgage payments, and required insurance premiums.

Key Term: Contribution
The right of a cotenant who pays more than their proportionate share of necessary expenses (such as taxes, mortgage interest, or essential repairs) to recover the excess from the other cotenants.

Key Term: Necessary Repairs
Repairs that are reasonably required to preserve the property from significant deterioration or to keep it in usable condition (e.g., fixing a leaking roof, repairing a broken furnace in winter).

Commonly shared items include:

• Property taxes and special assessments
• Mortgage interest (and usually mortgage principal payments)
• Insurance premiums required by a mortgage
• Necessary repairs to keep the property from falling into disrepair or becoming uninhabitable

By contrast, purely optional expenses (luxury landscaping, aesthetic upgrades, personal decorating choices) are not necessary expenses for which contribution is typically available, unless all cotenants agreed in advance.

Key rules:

• Any cotenant who pays more than their share of necessary expenses may seek contribution from the others for their proportional shares.
• Contribution is typically enforced through an equitable action for accounting or in the context of a partition proceeding.
• Many courts require that the cotenant seeking contribution give notice and a reasonable opportunity to participate in the expenditure, especially for repairs, before the expenditure will be treated as “necessary.”

Because the right to contribution can involve complicated offsets, courts usually resolve these issues in one comprehensive proceeding (accounting or partition), rather than through a series of separate lawsuits.

Exclusive Possession and Contribution

A recurring issue is whether a cotenant who lives on the property alone can still demand contribution from an absent cotenant for taxes, mortgage payments, and necessary repairs.

The majority rule for MBE purposes:

• Exclusive possession alone does not create a duty to pay rent and
• It does not automatically bar contribution for necessary expenses, unless there is an agreement or an ouster.

However, some courts will offset the benefit of exclusive occupancy against contribution claims. For example, if A lives in the property and seeks contribution from B for taxes, the court may reduce B’s contribution to reflect A’s uncompensated use of the premises, particularly if the fair rental value is significant. The MBE generally follows the simpler statement: contribution is allowed, and any offset is an equitable adjustment rather than a complete bar.

Worked Example 1.3

A and B own a duplex as cotenants. A lives in one unit; the other unit is vacant. B lives out of state and never uses the property. A pays all the property taxes and mortgage interest for three years; B pays nothing. A sues B for contribution. B argues that A’s exclusive use of one unit offsets any obligation. How should a court rule?

Answer:
A is entitled to contribution from B for B’s proportional share of necessary carrying costs (taxes and mortgage interest). A’s residence in part of the property does not automatically bar contribution. Unless the facts show an agreement about rent or a judicial decision to offset some of A’s exclusive-use benefit, the standard rule is that cotenants must share necessary expenses in proportion to their ownership interests.

Mortgages, Taxes, and Liens

If a cotenant fails to pay their share of taxes or mortgage payments, the other cotenant’s payment protects the common title. Many courts therefore grant the paying cotenant not only a right of contribution but also an equitable lien on the defaulting cotenant’s interest to secure reimbursement. In an eventual partition or sale, the court may direct that the paying cotenant be reimbursed from the defaulting cotenant’s share before distributing any remaining proceeds.

If one cotenant’s failure to pay taxes or mortgage payments leads to a tax sale or foreclosure, that cotenant may be liable to the others for waste (discussed below), because their neglect jeopardized the common interest.

Improvements and Repairs

Repairs and improvements are treated differently.

Key Term: Improvements
Voluntary changes or additions made by a cotenant that are not strictly necessary to preserve the property but are intended to increase its value or utility (e.g., adding a deck, remodeling a kitchen, installing a swimming pool).

General rules:

• A cotenant who makes necessary repairs may seek contribution from the other cotenants, as discussed above.
• A cotenant who makes voluntary improvements cannot, during the co-tenancy, compel the other cotenants to contribute to the cost of those improvements.

This reflects a concern that one cotenant not unilaterally force others to invest in a property in ways they might not want (for example, by adding a costly but unwanted luxury).

However, improvements are not irrelevant. They become important at partition:

• If the improvement increases the property’s value, the improving cotenant is generally entitled to a credit in the partition for the increase in value attributable to the improvement, not necessarily for the full cost.
• If the improvement decreases the property’s value or constitutes waste, the improving cotenant may be charged for the resulting diminution in value.

If partition in kind is ordered, courts often attempt to allocate the improved portion to the improving cotenant, where feasible, so that cotenant directly enjoys the benefit. In partition by sale, courts typically award an extra amount from the sale proceeds to the improving cotenant equal to the value added.

Note that the “value added” approach means that an expensive improvement that does not significantly increase market value may yield little or no credit.

Worked Example 1.4

A and B own a house as cotenants. Without consulting B, A spends $40,000 installing a luxury kitchen, which increases the home’s value by$25,000. Later, A files for partition. What is A entitled to regarding the kitchen?

Answer:
During the co-tenancy, A cannot force B to pay any part of the cost. At partition, however, A is generally entitled to a credit for the increase in value attributable to the improvement. Here, that is $25,000. The usual rule is credit for value added, not full reimbursement of the expenditure.

Waste and Destructive Conduct

Cotenants must refrain from damaging the common property.

Key Term: Waste
Conduct by a cotenant that permanently reduces the value of the property or unreasonably interferes with the other cotenants’ interests, such as destroying buildings, overharvesting timber, or neglecting the property so that it deteriorates.

Types typically tested:

• Voluntary waste: Affirmative acts that substantially harm the property (e.g., demolishing a structure without consent; strip-mining ornamental trees from a wooded estate).
• Permissive waste: Failure to maintain the property, leading to deterioration (e.g., ignoring a leaking roof; failing to pay taxes so that the property is sold at a tax sale).
• Ameliorative waste: Changes that alter the character of the property but arguably increase its value (e.g., converting a single-family historic home into modern apartments).

Any cotenant can sue another for waste, seeking damages or injunctive relief. The fact that a cotenant has a present possessory interest does not authorize destructive or unreasonable use that impairs the co-owned estate.

Cotenants may differ sharply about what constitutes “reasonable use.” For example, one cotenant might wish to cut timber for sale, while others prefer to preserve the land as a nature retreat. Courts look to factors such as:

• Historical use of the property
• The property’s character
• Customary uses in the region
• The magnitude and permanence of the change

Worked Example 1.5

A, B, and C own a 100-acre wooded tract as tenants in common. For decades, the land has been used as a rustic family retreat. Without consulting B or C, A clear-cuts 70 acres of timber and sells the logs, using the proceeds for personal purposes. B and C sue A. What claims are most appropriate?

Answer:
B and C can assert an action for waste and seek damages measured by the diminution in the property’s value caused by A’s clear-cutting. They may also seek an accounting for the net profits from the timber sale. A’s status as a cotenant does not authorize drastic depletion of common resources in a manner inconsistent with the property’s historical use.

Ouster and Remedies

Ouster is central to questions about rent, damages, and adverse possession between cotenants.

As noted:

Key Term: Ouster
Wrongful exclusion of a cotenant from possession, typically by physical obstruction (changing locks, blocking entry) or by expressly denying the other’s right to occupy upon demand.

Ouster usually requires:

• A demand by the out-of-possession cotenant to enter or share possession, and
• A clear refusal or act of exclusion by the cotenant in possession.

Mere unfriendly behavior, disputes about management, or one cotenant’s unilateral decision to move in and use the property do not amount to ouster without denial of the other’s right to share possession.

Consequences of ouster:

• The ousting cotenant may become liable to the ousted cotenant for fair rental value of the ousted cotenant’s share from the time of ouster.
• The statute of limitations for adverse possession between cotenants may begin to run from the ouster, if the ousting cotenant also makes clear that they are holding adversely.
• The ousted cotenant may sue for:
  • Possession (ejectment),
  • Damages for lost use (based on fair rental value), and
  • Partition.

Key Term: Fair Rental Value
The market rental value of the property (or the ousted cotenant’s share of it), used to measure damages when a cotenant is wrongfully excluded from possession.

Note that “fair rental value” is often higher than the rent a cotenant might actually charge on the open market for a partial interest. Courts usually calculate damages as the ousted cotenant’s percentage share multiplied by the fair rental value of the entire property.

Worked Example 1.6

Three friends own a vacation cabin as tenants in common. One friend, X, changes the locks and emails the others, Y and Z, stating that they “no longer own any rights” and that she will call the police if they come near the property. What remedies are available to Y and Z?

Answer:
X’s conduct is an ouster: she changed locks and clearly denied Y and Z’s rights. Y and Z may (i) bring an action for possession (or ejectment) to regain access, (ii) seek damages measured by their shares of the fair rental value for the period of exclusion, and (iii) request partition of the property if co-ownership is no longer workable. The ouster also starts the clock for any adverse-possession claim by X, because she has clearly repudiated the co-tenancy.

Adverse Possession Between Cotenants

Because each cotenant is entitled to possess the whole property, mere exclusive possession by one cotenant does not start the clock for adverse possession against the others. Co-occupancy is presumed to be permissive and consistent with the co-tenancy.

To adversely possess a cotenant’s interest, the possessing cotenant must:

• Oust the other cotenants or
• Clearly and unequivocally repudiate the co-tenancy, giving notice that they claim exclusive ownership.

This requirement is sometimes expressed as a need for “clear and unmistakable” notice of an adverse claim. Examples of conduct that may satisfy this requirement include:

• Explicitly telling other cotenants that they no longer have any interest
• Recording a deed or other document asserting sole ownership and bringing it to the others’ attention
• Refusing all access after a demand for shared possession and asserting exclusive title

Merely paying all taxes and mortgage payments and living on the land for many years is usually not enough to create adverse possession against another cotenant without some clear repudiation of the shared ownership.

Worked Example 1.7

Twenty-five years ago, A and B inherited a farm as tenants in common. B moved overseas and has never returned to the farm. A has lived on the farm, farmed it, and paid all taxes and mortgage payments since then. A never told B that B’s interest was denied, and B never demanded to enter the property. The statute of limitations for adverse possession is 20 years. A now claims sole ownership by adverse possession. Who prevails?

Answer:
B still owns an undivided interest. A’s sole possession and payment of expenses, without a clear ouster or explicit repudiation of the co-tenancy, are presumed to be consistent with A’s rights as a cotenant in possession. The limitations period for adverse possession did not begin without ouster or unequivocal notice of adverse claim.

Partition

Any cotenant (except usually a tenant by the entirety acting alone) has a right to demand partition when the co-tenancy becomes unworkable.

Key Term: Partition
A legal process that terminates the co-tenancy by dividing the property (or its value) among the cotenants so that each owns a separate interest.

Two main forms:

Key Term: Partition in Kind
Physical division of the property into separate parcels, with each former cotenant receiving a distinct piece.

Key Term: Partition by Sale
Court-ordered sale of the entire property, followed by division of the sale proceeds among the former cotenants in proportion to their interests.

Courts generally prefer partition in kind, especially for large tracts of land or agricultural property, unless:

• Physical division is impracticable (for example, a single-family home or a small apartment building), or
• Partition in kind would substantially harm the overall value or would be inequitable (for example, because of improvements placed by one cotenant in a particular location).

In deciding between these forms, courts may consider:

• The nature and size of the property
• Whether each cotenant’s share can be fairly and conveniently assigned
• Whether physical division would cause a significant drop in aggregate value compared to sale as a whole
• The interests of cotenants who have made improvements or borne disproportionate expenses

In a partition action, the court will:

• Determine each party’s ownership share
• Adjust the shares for contribution, waste, and improvements
• Then either physically divide the land or order a sale and allocate the net proceeds

Worked Example 1.8

A and B own 200 acres of farmland as tenants in common. The land can easily be divided into two roughly equal parcels without harming its value. A wants to end the co-tenancy; B refuses to sell. What can A do, and what is the likely result?

Answer:
A can file an action for partition. Because the land can be physically divided without significant loss of value, the court will likely order partition in kind, giving A and B separate parcels of land. Partition by sale is typically reserved for cases where physical division is impracticable or would clearly harm the overall value.

Effect of Improvements and Expenses at Partition

Partition provides a convenient time for courts to settle all financial adjustments among cotenants, including:

• Contribution for necessary carrying costs and repairs
• Credits or charges for improvements
• Damages for waste
• Rents and profits collected from third parties

General patterns in partition:

• An improving cotenant receives a credit for value added by improvements.
• A cotenant who committed waste may have their share reduced by the amount of harm.
• A cotenant who paid more than their fair share of taxes, mortgage payments, or necessary repairs is reimbursed before proceeds are divided.

If partition in kind is ordered, the court may allocate improved portions to the improving cotenant where feasible, so that they directly receive the benefit of their investment.

Agreements Not to Partition

Cotenants sometimes agree not to seek partition for a specified period (for example, to keep a family home or a jointly owned business intact). Courts generally uphold such agreements if they are:

• Clearly expressed, and
• Reasonable in duration and purpose.

A temporary restriction—such as “no partition for 10 years” while a long-term lease runs, or “no partition during the lifetime of our surviving parent who lives in the home”—is usually enforceable.

By contrast, an absolute, perpetual bar on partition is more likely to be viewed as an unreasonable restraint on alienation and therefore invalid. The MBE is most likely to treat broad, time-unlimited restrictions skeptically.

Accounting

Another remedy among cotenants is an action for accounting.

Key Term: Accounting
An equitable proceeding in which a court determines how much one cotenant owes another for rents, profits, and expenses incurred in connection with the co-owned property.

Accounting allows the court to sort through:

• Rents collected from third parties
• Profits from business use or resource extraction
• Necessary expenses paid by one cotenant (taxes, mortgage payments, repairs)
• Any appropriate offsets for exclusive use, where recognized
• Credits for improvements and charges for waste

Accounting is especially useful when:

• One cotenant has collected rents from third parties and not shared them
• One cotenant has borne disproportionate carrying costs
• There are complex, offsetting claims involving income, expenses, and improvements over many years

Partition and accounting often occur in the same lawsuit, so the court can both terminate the co-tenancy and equalize financial obligations in a single proceeding.

Special Issues: Tenancy by the Entirety

In a tenancy by the entirety, spouses are treated as a single legal unit. This form of ownership is available only to married spouses in jurisdictions that recognize it and is often created by a deed to “A and B, husband and wife.”

Common rules (generalized for MBE purposes):

• Neither spouse acting alone may convey or encumber the property. An attempt by one spouse to transfer or mortgage the property without the other’s consent is usually ineffective.
• Neither spouse may unilaterally seek partition. The estate can be severed only by:
  • Death of one spouse (with survivorship to the other),
  • Divorce (which typically converts the estate to a tenancy in common), or
  • Mutual agreement.
• Creditors of one spouse alone usually cannot reach the property to satisfy personal debts. The property is protected from the separate creditors of either spouse, though creditors of both spouses can often reach it.

However, while the marriage continues, the baseline duties of fair dealing and the prohibition of waste still apply. One spouse cannot destroy, abandon, or devalue the marital home to the detriment of the other. If a spouse commits waste, the other can seek injunctive relief or damages.

Although tenancy by the entirety has some distinctive features, the day-to-day possessory relationship while the marriage is intact resembles that of other cotenancies: each spouse has an equal right to occupy the whole property, and neither may exclude the other.

Exam Warning

A cotenant in exclusive possession does not owe rent to other cotenants unless there is ouster or an agreement to pay rent. Look for facts showing:

• A demand for entry or shared use, and
• A refusal or act of exclusion (e.g., changed locks, threats, or a claim of sole ownership).

Without these, do not impose rent liability simply because one cotenant lives there alone.

Another common trap is to assume that a cotenant can always recover the full cost of voluntary improvements from other cotenants. On the MBE, the default rule is:

• No contribution for voluntary improvements during co-ownership, but
• A credit (or charge) at partition based on the change in value caused by the improvement.

Revision Tip

When analyzing a cotenancy problem on the MBE, run through this checklist:

• Has any cotenant been denied access or expressly excluded (ouster)?
• Has one cotenant collected rent or profits from third parties (accounting)?
• Did one cotenant pay more than a fair share of taxes, mortgage, or necessary repairs (contribution)?
• Were there voluntary improvements, and is the issue arising at partition (credit or charge for value change)?
• Is someone claiming the entire title after a long period of exclusive possession (adverse possession plus ouster)?
• Is the form of co-ownership a tenancy by the entirety, and if so, can one spouse act unilaterally?

Key Point Checklist

This article has covered the following key knowledge points:

• Each cotenant has an equal right to possess and use the entire property, regardless of fractional share.
• Exclusive possession alone does not require payment of rent to other cotenants.
• Ouster requires actual exclusion or a clear denial of a cotenant’s right to possess; ouster triggers liability for fair rental value and may start adverse possession.
• Cotenants must share necessary expenses such as property taxes, mortgage payments, and necessary repairs in proportion to their ownership interests.
• A cotenant who pays more than their share of necessary expenses has a right of contribution, typically enforced through accounting or partition, and may receive an equitable lien on other cotenants’ interests.
• Voluntary improvements do not give rise to a right of contribution during co-ownership.
• At partition, an improving cotenant may receive credit for the increase in value from improvements or be charged for any decrease in value or waste.
• A cotenant who commits waste may be liable in damages or subject to injunctive relief at the suit of other cotenants.
• Any cotenant (except usually one spouse alone in a tenancy by the entirety) may demand partition; courts prefer partition in kind, resorting to partition by sale when physical division is impracticable or inequitable.
• Accounting actions allow courts to sort out rents, profits, expenses, and improvement credits between cotenants in a single proceeding.
• Adverse possession against a cotenant generally requires ouster or clear repudiation of the co-tenancy, not merely long exclusive possession and payment of expenses.
• Tenancy by the entirety provides spouses with survivorship and strong protection against unilateral conveyance, partition, or creditor claims by one spouse alone.

Key Terms and Concepts

• Cotenancy
• Tenancy in Common
• Joint Tenancy
• Tenancy by the Entirety
• Right of Possession
• Ouster
• Constructive Ouster
• Adverse Possession
• Carrying Costs
• Contribution
• Necessary Repairs
• Improvements
• Waste
• Fair Rental Value
• Partition
• Partition in Kind
• Partition by Sale
• Accounting