There are many ways of legally acquiring property in the United States. The vast majority of homeowners wend through the familiar mortgage-origination process and use the services of a real estate broker to secure an agreeable slice of land. To shoulder the costs of acquiring extensive or highly valuable swathes of land, larger landowners may negotiate partnerships or tenancy-in-common arrangements with business partners. These arrangements offer plenty of obvious advantages as well as a handful of well-defined drawbacks.
A Brief Review of Co-Tenancy
Tenancy-in-common arrangements are useful for property owners who lack the means or will to administer an entire parcel. Business owners often enter such agreements to share the cost of running a property and secure stakes in the value that it produces. Likewise, family members who wish to retain possession of a relative's property after his or her death may enter into tenancy-in-common arrangements that allow for a smooth, low-tax transfer between parties. Tenancy-in-common is also frequently used by second-homeowners and vacationers who wish to enjoy the use of a property at certain times of the year while retaining control of a primary residence.
In any case, tenancy-in-common allows co-tenants to enjoy fractional, undivided interests in a specific piece of property. By law, co-tenants can use the entire parcel for their desired purposes and are not in any way subordinate to their co-owners. Each co-tenant enjoys the full measure of his or her property's appreciation and may "cash out" by selling his or her interest to one or more co-tenants at any time.
What Is Adverse Possession?
In the popular imagination, adverse possession is the province of determined ranchers who graze their animals on adjacent plots of land or homeowners who slowly take over the upkeep of a derelict, absentee-owned house. Among co-tenants, however, adverse possession takes a far more regimented and legalistic form. Under most circumstances, one co-tenant can't take over the interest of another without providing adequate notice of his or her intention to do so.
Common Routes By Which Adverse Possession May Be Achieved
Most adverse possession claims originate with a written notice. Regardless of the number of co-tenants involved, a single co-tenant may initiate the proceedings against another co-tenant. This is known as "ouster" and has substantial legal precedent in such cases as Board of Trustees of the Tecolote Land Grant v. Griego and Williams v. Screven Wood Company, Inc. The written notice must inform the ousted co-tenant of the "intent to exclude." It must also be accompanied by decisive action, including:
- Acts that directly contravene the ousted tenant's use of the property, including the shuttering of a structure or a change in land use
- Evidence that the tenant-in-common failed to participate in a previous conveyance and thus lacks proper title to the land
- Uninterrupted adverse use of the land for a period of several years
- An assumption of the co-tenant's tax responsibilities
While there is some precedent for adverse possession without formal written notice, co-tenants who wish to oust a partner can strengthen their cases by taking this extra step.
Other Considerations and Special Circumstances
It's also possible for a single co-tenant to take possession of an entire property from all other tenants and essentially nullify the entire tenancy-in-common agreement. While this can be a "hard sell" for some courts, it's not impossible to execute. Since courts don't necessarily assume that a single co-tenant who possesses and improves an entire parcel of property is doing so in a hostile or adverse manner, he or she must show that this is actually the case.
In addition to meeting the above-mentioned requirements, a co-tenant who wishes to take possession of an entire lot must inform each of his or her co-tenants of this aim and subsequently maintain the property, erect fencing and make adverse improvements like new cultivation or construction. However, such concerted action may not be enough to secure adverse possession in the eyes of the law. Co-tenants always have a better chance of executing an ouster or taking sole possession of a property with a trained lawyer at their disposal.
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