Whippie v. O'Connor, 2011 VT 97 (mem.)

This is defendant's second appeal in a partition action brought by his former girlfriend to resolve the parties' respective interests in a house they hold as tenants-in-common. On remand following the first appeal, the trial court determined that defendant had ousted plaintiff from their property and was therefore not entitled to compensation for costs of maintenance of the property during the ouster period. Defendant argues that the court erred in failing to properly account for plaintiff's failure to pay towards maintenance of the property during the ouster period. We agree, and reverse and remand.

Our law on joint tenancies, 27 V.S.A. § 2(b)(2)(A), establishes a statutory presumption that joint tenants will share equally. Therefore a cotenant who pays necessary maintenance costs associated with jointly owned property is entitled to a setoff for the other tenant's portion of those costs. The great weight of authority is that ousted tenants are entitled to the reasonable rental value of their portion of the property only if they are also responsible for "their share of the necessary property maintenance expenses after ouster. Such a rule comports with the equitable nature of a partition action and encourages responsible use by the occupying tenant. It is reasonable that ousted tenants remain obligated to contribute to maintenance costs because these are required to preserve the property, which is in the interest of all tenants. Thus, we conclude that defendant was entitled to compensation for half of the maintenance costs he paid for the entire period, even after the ouster.