Spiller v. Mackereth

Supreme Court of Alabama · 1976 · Property

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Facts

Spiller purchased an undivided one-half interest in a commercial lot in Tuscaloosa, whose other cotenants included Mackereth. After the existing tenant vacated, Spiller began using the entire building as a warehouse. Mackereth's attorney sent Spiller a letter demanding that he either vacate one-half of the building or pay rent, but neither Mackereth nor the other cotenants demanded access, attempted to enter, requested keys, or showed that Spiller prevented entry. Spiller also placed locks on the building after the prior tenant removed the old locks.

Issue

Whether a cotenant in possession becomes liable to another cotenant for rent when the other cotenant merely demands that he vacate half the premises or pay rent, and whether placing locks on the building without proof of exclusion constitutes ouster. Also, whether the trial court properly awarded a portion of attorney's fees to Mackereth's attorney for services benefiting the common estate.

Rule

In Alabama, absent an agreement to pay rent, a cotenant in possession is liable to other cotenants for rent only upon ouster. For rent-liability purposes, ouster requires denial of the other cotenants' right to enter, which presupposes a demand or attempt to enter; a mere demand to vacate or pay rent is insufficient. Attorney's fees in a sale for division may be awarded, in the trial court's discretion, only for services that benefit the common estate and the tenants in common.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Ortiz and Caleb Moran own a warehouse in Birmingham as tenants in common. After the prior commercial tenant leaves, Caleb stores restaurant equipment throughout the entire building. Nina sends Caleb a letter stating, "Either clear out half the space or start paying me monthly rent," but she never asks for a key, never asks to move in, and never goes to the property.

If Nina sues Caleb for rent for his use of the building, what is the most likely result?

Explanation. A cotenant in possession is not liable to another cotenant for rent merely because he occupies the whole property. Under the majority rule applied here, liability requires either an agreement to pay rent or an ouster. For rent-liability ouster, the possessing cotenant must deny the other cotenant's right to enter, which presupposes a demand or attempt to enter. Nina demanded only that Caleb vacate or pay rent, not that she be allowed equal use and enjoyment.