[Real Property] 9.Florence Gilmor v. Edward Gilmor and C.Frank Gilmor

[sulwing]

9.Florence Gilmor v. Edward Gilmor and C.Frank Gilmor

Supreme Court of Utah (1984) - 694 P.2d 1037

FACTS

Plaintiff and defendant succeed the ownership of the land upon their father’s death and became tenants in common. Plaintiff had undivided interest(co-ownership) of the land but defendants kept occupying the common property thus obstructed plaintiff from exercising the right to use the land. Plaintiff filed the suit for an accounting and damages for the defendant’s exclusive use of the property. The Trial court awarded the damages to plaintiff, defendant appealed.  

ISSUE

Whether there was the exclusive use of property for ouster the by one cotenant and he is liable for the damage.

RULE

Roberts v. Roberts, Utah, 584

(1)A cotenant may sue for his share of rents and profits from common property if he has been ousted from possession of the common property. 

(2)exclusive use: either an act of exclusion or use of such a nature that is necessarily prevents another cotenant from exercising his rights in the property

Utah oil Refining Co. v. Leight (1939) 

A tenant in common has the right to use and occupy the entire property held in cotenancy without liability to other cotenants;… As long as he does not interfere with the cotenant’s right to occupy, use and enjoy.

Heiselt v. Heiselt, 10 Utah 2d 126 (1960)

Where a cotenant in sole possession makes repairs or improvements to the common property without the consent of this fellow cotenants, he generally has no right of contribution. 

…cannot charge the other cotenant. 

Zanzonico v. Zanzonico (1938)

A cotenant may be required to contribute his pro rata share of expenses if the cotenant in possession acted in good faith, with the bona fide belief that he was the sole owner of the property, or when the repairs were essential to preserve or protect the common estate.  

APPLICATION

Defendant’s arguments;

1. Defendant argued that there was no sufficient evidence of ouster. However, the Court found that there is no error in decision of trial court regarding the exclusive use of the property in June 1980- Dec 1980 by defendant. Defendant had exercised exclusive possession and use of the common properties to exclude the plaintiff from using the land. Plaintiff sent a letter expressing her intention to graze her livestock and requested defendant to accommodate. But defendant refused it meanwhile he occupied the maximum capacity for his livestock knowing that the more grazing in the common area would damage the land.

 Defendant interfered with the plaintiff’s right to occupy, use and enjoy the property Utah oil Refining Co. v. Leight (1939) and it prevents plaintiff from exercising her rights in the property because of defendant’s exclusive use. Roberts v. Roberts, Utah, 584

2. Defendant argued that the damages for second phase are excessive. 

(1) He argued that since the trial court’s judgment in the first phase was 69% of the amount plaintiff sought, the court should have used the same method to compute damages in the second phase. But both the amount of damages depends on AUM** method which defendant did not have objection. Thus, it is not erred. 

(2) he argued that the time when he herded his livestock over in the land owned by third party pursuant to trail or trespass rights should be deducted. But the trail rights are appurtenant to the Gilmor land. No error.

(3) there is evidence by his son that his sheep grazed on non Gilmor land in Park city 50% of the time, $561.12 AUMs. Therefore it should be reduced by $3,838.06. However, the trial judge accepted the other evidence as the more reliable, and the Court respects his prerogative decision. 

(4) defendant argued that the costs of repairs made on the common property which directly benefit the plaintiff should offset the damage. But, the repair or improvement without permission of cotenant cannot charge the other cotenant according to Heiselt v. Heiselt, 10 Utah 2d 126 (1960)

However, the Court found that the defendant is entitle to recover reasonable expenditures made by him for necessary repairs and maintenance because he is liable for the value of the use, occupancy, or rents collected in good faith. Zanzonico v. Zanzonico (1938)

CONCLUSION

The evidence indicates that the repairs were a necessary cost of grazing the livestock and should have been deducted from the damages awarded. 

Affirmed in part, reversed in part, and remanded for modification of the judgment. 

NOTE

상속받은 땅의 지분을 반씩 동등하게 가지고 있는 tenancy in common 상황에서 한 cotenant 가 다른 cotenant 의 사용을 방해하고 독점적으로 사용하고 있는 것이 ouster 로 인정이 되고, 그에 따른 손해배상은 어떻게 계산되는지 배웠습니다.

수업에서는 3개의 각각 tenancy에서 다른점과, tenant 단어의 사용이 landlord 관계가 있는지를 놓고 논의하게 되면서 혼란에 빠지면서 마무리..되었습니다.

Home Assignment

*상속받기 전에는 Joint Tenancy 였을 것이라는 추측에는 오류가 있습니다. 왜냐햐면, Joint Tenancy 에서는 Surivorship 이 있기 때문에 동시에 죽지 않았다면 다른 한쪽으로 남은 쪽의 interest 가 흡수됐어야합니다. 하지만 여기서는 아버지의 죽음으로 소송당사자들이 각각 반씩 interest 를 상속받았으므로 아버지들의 tenancy 도 Tenancy in Common 이었을 것이라고 생각합니다.

*Tenancy 는 landlord -tenant 의 개념이 아닌, “ownership” 을 의미합니다. 

Joint Tenancy	Tenancy in Common	Tenancy by Entirety
When two or more people purchase a property together with equal interest in the property and equal rights, this is referred to as joint tenancy.	If multiple people hold title under tenancy in common, this means that each individual can choose to sell their ownership interests in the property at any time.The entire property is available to each owner, regardless of percentage, and that is called undivided interest.	Exclusively available to married spouses. Both spouses own the real estate together with an undivided interest. This means both spouses own 100% of the property.
four conditions must be met:  1)The tenants must obtain the property at the same time 2)Equal property interest by each tenant  3)All tenants must acquire the title deed from the same document  4)Equal rights of ownership must be exercised by all tenants	Unlike with joint tenancy, a tenancy in common agreement allows for multiple owners to own different percentages of the entire property. This does not mean that certain areas of the property are owned by those holding the larger ownership percentage.	Tenancy by entirety is not recognized in every U.S. state.
Survivorship: YES  When you hold title in a joint tenancy, if one of the co-owners dies, the ownership rights automatically transfer to the remaining owner or owners	Survivorship: NO If you do not have a will and hold title via tenancy in common, your share of the property will be distributed according to your state's probate laws.	Survivorship:  the surviving spouse becomes the full owner when the other spouse dies. (probate X)
If one of the tenants owes a debt, a creditor has the power to terminate a joint tenancy even if the other co-owners have nothing to do with that debt.	On the occasion of their death, each co-owner may choose who will be the beneficiary of their ownership as part of their estate.	In certain states, creditors cannot attach debts to the home when only one spouse owes the creditor.

**AUM

Animal Unit Month. It is based on the age, class and size of livestock, and the amount of forage they will consume in one month. An AUM also is a common way of expressing stocking rates, such as “my pasture can support 125 AUM in an average year of growth.