Seesholts v. Beers

• Decision Date: 12 December 1972
• Docket Number: No. 71--927,71--927
• Citation: Seesholts v. Beers, 270 So.2d 434 (Fla. App. 1972)
• Parties: Charles Arnold SEESHOLTS, Appellant, v. Elizabeth P. BEERS, and The Equitable Life Assurance Society of the United States, Appellees.
• Court: Florida District Court of Appeals

Page 434

270 So.2d 434

Charles Arnold SEESHOLTS, Appellant, v.Elizabeth P. BEERS, and The Equitable Life Assurance Society of the United States, Appellees.

No. 71--927.

District Court of Appeal of Florida, Fourth District.

Dec. 12, 1972.

Rehearing Denied Jan. 10, 1973.

Edward W. Starr, Sr., of Law Offices of Starr & Myers, West Palm Beach, for appellant.

Thomas J. Yeager of Nason Gildan & Yeager, West Palm Beach, for appellees.

CROSS, Judge.

Appellant-defendant, Charles Arnold Seesholts, appeals an order of the trial court awarding a reasonable rent to the appellee-plaintiff, Elizabeth P. Beers, as a setoff to appellant's claims for mortgage payments, et cetera, in an action for partition.We reverse.

The parties to this appeal were husband and wife, but due to marital difficulties a divorce was obtained in March of 1969.The terms of the divorce decree granted the wife exclusive possession of the former marital home (held by the parties in a tenancy by the entireties, and converted by the divorce into a tenancy in common) until September of 1969.No further provisions were made concerning the property.Appellee-plaintiff, Elizabeth P. Beers(Elizabeth) voluntarily vacated the premises in September 1969, and the appellant-defendant, Charles Arnold Seesholts(Charles) began his sole possession of the home in October 1969.It is admitted by the parties that Charles was not holding adversely to Elizabeth's title and that Charles did not hold the property as a result of ouster or the equivalent thereof.

Elizabeth brought this action for partition and sought one-half of the reasonable rental value of the home while occupied by Charles as a charge to be allowed to her in the event that the home had to be sold.Charles answered, agreed that the home was indivisible, and requested that the home be sold.He, therefore, sought as a charge to be allowed to him one-half of the following: taxes, both state and municipal, house insurance, mortgage payments, money to pay for damage to the house allegedly caused by Elizabeth, money for the various items of personal property alleged to have been owned jointly but taken from the house by Elizabeth, and the full value of various items of personal property alleged to have been owned solely by him but taken by Elizabeth.The trial court entered final judgment for partition and in addition, determined:

'3.The Court having found that the parties' claims are offsetting, the Plaintiff's claim for rents is denied and the Defendant's claim for credits due for mortgage payments, taxes, insurance and improvements is denied.'

This appeal followed.

Appellant presents one question for our determination: whether the trial court erred in permitting the wife a set-off of one-half of the reasonable rental value of the home.

The rule in Florida has long been that:

'. . . when one contenant has exclusive possession of lands owned as tenant in common with another and uses those lands for his own benefit and does not receive rents or profits therefrom, such cotenant is not liable or accountable to his cotenant out of possession Unless such cotenant in exclusive possession holds adversely or as the result of ouster or the equivalent thereof.This was the rule of common law, as modified by the Statute of Ann, and as it was expressly adopted as the law of Florida in 1875 by our Supreme Court in Bird v. Bird(Fla.1875), 15 Fla. 424.The rule has persisted unchanged and has heretofore been recognized by this court.SeeTaylor v. Taylor(Fla.App.1960), 119 So.2d 811, 813.'Coggan v. Coggan, 239 So.2d 17, 18(Fla.1970).

Only one instance has come to our attention where this long standing rule has not been applied.In Potter v. Garrett, 52 So.2d 115(Fla.1951), a case strikingly similar to the case sub judice, the Florida Supreme Court permitted a set-off of one-half the rental value of a house.

However, in view of the recent affirmance of the common law rule in Coggan v. Coggan, supra, we believe that Potter v. Garrett, supra, has been impliedly overruled, ¹ and that therefore it was error for the trial court to allow one-half of the reasonable rental value of the land as an offset.

Accordingly, the final judgment is reversed and the cause remanded for further proceedings consistent with theviews expressed herein.

Reversed and remanded.

OWEN, J., concurs.

WALDEN, J., dissents, with opinion.

WALDEN, Judge (dissenting):

I would affirm.

My review of the case law of this state, and particularly the cases cited by the majority, leaves me convinced that the trial court ruling is compatible and correct.More compellingly, this dissent is triggered by the notion that the decisional process of Florida should not be shackled by an automatic and unnecessary invocation of an ancient rule absolute that operates in every circumstance regardless of fairness, equity and the present day practicalities of life.It seems to me that the judicial function is not merely mechanical and that under the circumstances of this case an exception to the rule is sanctioned and in order.

As used by the majority in reaching their decision to reverse, there is, indeed, a generally accepted common law rule.It is that a cotenant in possession of the common property is not liable to his cotenants for the value of its use and occupation where such absent cotenants have not been ousted, excluded, or their equal rights denied.See20 Am.Jur.2d, Cotenancy and Joint Ownership, § 41.

Without doubt this is a salutory principle that brings about a just result in the average or usual situation.

To mention some bases for the rule,

'(1) Each cotenant was entitled to the occupation of the premises; as long as one did not exclude the other, he was free to possess and enjoy as he pleased; the one who did not choose to exercise his right was deemed to relinquish it to the other.--Thompson v. Flynn, 102 Mont. 446, 58 P.2d 769.

'(2) This rule has its foundation in the fact that each cotenant is entitled to occupy the property, and that sometimes property can be made to produce revenue only through the efforts of the occupant, and often this is insufficient to justify the payment of rent; where this is true, it would be an injustice to the occupant afterward to demand of him that he pay for the use of the property; consequently, where one tenant in common occupies more than his share of the property without complaint from the other cotenants this raises a presumption of willingness on their part to allow the occupant all he can get out of the use of the property.--Roberts v. Roberts, 136 Tex. 255, 150 S.W.2d 236, 136 A.L.R. 1019.'86 C.J.S. Tenancy in Common, § 46, at page 408.

To put it another way, the unilateral decision of one cotenant to vacate should not change his status into that of a landlord over the remaining cotenant in possession so that the remaining cotenant would be accountable for rent to the departee.But this supposes, obviously, that the absentee is free and able to remain or to return and take his place as an equal occupant and cotenant in possession.

Can there be an exception to this rule?It is here that the majority and this writer part company, as I suggest that a creditable basis therefor exists where special property characteristics, limitations and circumstances are such as to reasonably preclude joint occupancy.Such an exception is recognized and delineated in Annot....