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, under Massey v. Hrostek, 2009 VT 70 (Reiber, C.J.), is not entitled to a credit for costs of maintenance of the property during the ouster period. We overrule Massey, 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. In Massey we stated that "the cotenant who excludes his cotenants from possession and enjoyment of the jointly owned property is not entitled to credit for costs incurred, for either maintenance or improvements, during the period of the ouster." 2009 VT 70, ¶ 25. We acknowledge that Massey is a recent decision and that we do not "lightly overturn recent precedent,” O'Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.), but this statement of the law in Massey is incorrect and the error should not be perpetuated.

To the extent that this statement precludes a tenant in possession from claiming contribution for necessary maintenance costs such as mortgage, taxes and insurance during the period of ouster, it is overruled.

The statement was contrary to prior Vermont law, which followed a "general rule" that "when a tenant who has ousted his co-tenants is charged with rents or profits he should be credited with payments on encumbrances, taxes, insurance and repairs." Richardson v. Richardson, 111 Vt. 140, 149-50, 11 A.2d 227, 231 (1940).
The great weight of modern authority agrees with Richardson that an ousted tenant is entitled to the reasonable rental value of their portion of the property only if is they remain responsible for "their share of the necessary property maintenance expenses after ouster."
Massey did not explicitly overrule Richardson,
Massey did not discuss why a change in the general rule was necessary or prudent from a public policy perspective.
Other than Massey plaintiff cites no law in support of her position
The case cited by Massey does not support its conclusion, because in the cited case the ousted tenant did not receive the rental value.
Plaintiff’s position is inequitable in that she claims a double benefit of ouster—half the rental value plus no contribution for the maintenance costs of the property.
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.