COTENANCY PRODUCES GRIDLOCK
Carol’s problem occurs all too often when children inherit real estate from their parents. In her case, her father left a cottage on a Lake Erie Island to Carol and her two brothers and sister. No doubt dad thought a little get-away spot for the entire family to enjoy for years to come would help keep the family together. Unfortunately, just the opposite has happened, with one brother taking the cottage over for his own use to the exclusion of the others. And to make matters worse, that same brother has refused to contribute his share to the cost of maintenance and upkeep of the property.
MAJORITY DOESN’T RULE
When Carol’s father died leaving the cottage to his four children, he created rights in each of them whereby in the law they are considered cotenants. What this means is that each of them individually has the right to possess the whole at any given time. In other words, no one of them, either acting individually or together, can exclude a cotenant from using and enjoying the entire property at any time. The fact that there are three siblings united in purpose against the obstinate brother does not change things. Cotenancy is not a situation where majority rules.
BREAKING THE GRIDLOCK
I explained to Carol that the only way out of her situation is to file a partition action in the court. The same would be true whether there are four cotenants as in Carol’s case, or a thousand. When a partition action is filed, the court immediately appoints commissioners to determine whether the property can be divided equally among the cotenants. If it cannot, then they appraise the property to determine its value. After that any cotenant may elect to buy the others out at their proportionate share. If no one makes an election to buy, the property is put up for public sale. A partition action will allow Carol to break the gridlock and get her fair value out of the property.
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Kathryn Eyster contributed to this article.