As a general rule, each joint tenant, tenant in common, or coparcener (joint heir) has the right to possess the whole, regardless of the percentage that they own. For the purposes of this article, I will use the term “co-tenants”.
Under established Virginia law, one co-tenant may oust the others. When this occurs, the ousted co-tenants may recover the fair rental value of the property (profits). To determine the amount that the ousted co-tenant is entitled to, you would determine the fair rental value (profits) and subtract the cost of maintenance and repairs. For example, if the ousted co-tenant owns 40% of the property, they are entitled to 40% of the profits.
Virginia Code § 8.01-31 provides: An accounting in equity may be had against any fiduciary or by one joint tenant, tenant in common, or coparcener for receiving more than comes to his just share or proportion, or against the personal representative of any such party.
To determine whether an ouster has occurred, from which the ousted co-tenant may recover the fair rental value, Virginia courts ask two questions: 1) Is co-occupation even possible? 2) If co-occupation is possible, was there an exclusion or ouster of the non-occupying co-tenant? Daly v. Shepherd, 645 S.E.2d 485 (Va., 2007).
In the Daly case, the Virginia Supreme Court found that there was no ouster and that the plaintiff was not entitled to a ratable share of fair market value. The court determined that the plaintiff “was able to move into the property, had planned to move in, and then chose not to do so.” Simply put, in order for a Virginia court to award the fair rental value, the occupying co-tenant must clearly and wrongfully exclude the other co-tenants from the property.
Ryan C. Young |Real Estate Attorney | Richmond, Virginia