Friday, February 10, 2012

Gillmor v. Gillmor case brief (45 Cal.2d 145)

Gillmor v. Gillmor
45 Cal.2d 145
-One party ousted the other from possession.  
-33,000 acres, large parcels
-D obstructed P from exercising right to occupy land in which she owned an undivided interest w/ D and another.
-Frank gave to sons (D - 1/4th) and (C. Frank - 1/4th) and Edward gave his half to the P, a tenancy in common.


-May 1979:  P filed suit for accounting and damages for D’s exclusive use of property since Jan. 1, 1979.  
-Separate suit for partition of common properties.
-At appeal, D argues: 1.  Re: 2nd judgment, no evidence of finding on ouster.  2.  even if an ouster; damages are excessive.

-A co-tenant may sue for his share of the rents and profits from common property if he has been ousted from possession of common property.
-Mere exclusive use of commonly held properties by one co-tenant is not sufficient to establish an ouster.
-TIC has right to use and occupy entire property without liability to other co-tenants.
-Each co-tenant has the right to free and unobstructed possession without liability for rents for the use and occupation thereof.
-Can’t interfere with other co-tenants rights to likewise occupy, use and enjoy.
-Exclusive use requires an act of exclusion or use in such a nature that prevents a co-tenant from exercising his rights to the property.
(Here the P sought to graze livestock, prevented from doing so)
-Offset for repairs made on common property: where a co-tenant is in sole possession and makes repairs or improvements to the common property without consent from fellow co-tenants, he generally has no right to contribution.
-Contribution is allowed where other co-tenants have stood by and permitted harm to proceed to his detriment.
-Repairs here were a necessary cost, and should be deducted from the damages awarded.

Link to Case:  45 Cal.2d 145

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