Absentee Owners Beware: Your Co-Owner Can Kick You to the Curb

There is a concept in the law known as waiver, which means that failing to exercise your rights may result in their loss. Similarly, people who share an ownership interest in land may lose that interest by failing to act like an owner.

The applicable scenario is as follows: A person obtains ownership interest with others in real property by inheritance or under intestacy laws. This co-owner, while a record owner, does nothing to contribute to the management and upkeep of the property. He fails to pay his share of taxes or insurance, fails to ever visit or occupy the property, and has little or no contact with his co-owner(s) concerning the property. Now, the owners who have overseen and exercised control over the property want to rent, mortgage or sell it. But the absentee owner is nowhere to be found or refuses to participate in the lease or sale or assist with procuring the mortgage. The active owners’ hands are tied and they can do nothing to improve the property.

For more than 100 years, the general rule is that a tenant-in-common’s possession of property must not be adverse to the co-tenant’s possession, but consistent with their title. See Ipswich v. Proprietors of Jeffries Neck Pasture, 218 Mass. 487, 491 (1914). But when the absent co-owner cannot be found or is purposefully acting in a manner inconsistent with their title, the active co-owner(s) have available the means to remove him from title. That process is known as “Ouster.” In our practice, the concept of ouster—and litigation to accomplish it—comes up from time to time.

Ouster can be accomplished by two means:

1. Actual ouster is a proactive exercise by which the possessing co-owner brings suit against the absentee-owner. It is an action that seeks to dispossess the absent co-owner from his legal rights to title, such that title will vest only in the owner who oversees, maintains, and pays the expenses of the property, and the absent co-owner is “disseized” of title.
2. Constructive ouster does not entail a formal act of dispossession to remove someone from title but occurs after the passage of time. Similar to the concept of adverse possession, where a neighbor can claim property rights of another after twenty years of continuous, open, notorious, exclusive, adverse use of land, constructive ouster is available when the possessing co-owner brings an action to show that the absent co-owner has done nothing over an unreasonably long period of time and thus has lost his ownership interest.

Ouster is an uncommon but powerful tool to quiet title when a co-owner takes no affirmative steps to exercise the rights and responsibilities of a landowner to the detriment of the other co-owner(s) who have maintained, occupied, and paid expenses of the realty. So, if you own an interest in property, be sure to act like an owner, or risk losing your interest to your co-owners.