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Ouster

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tranquility

Senior Member
What is the name of your state (only U.S. law)? CA

In a recent thread by ProperProPer at:
https://forum.freeadvice.com/other-real-estate-law-questions-11/does-womens-use-restraining-order-constitute-ouster-623978-p2.html

The OP (assuming he was the principal in Pro se for the thread), had a domestic violence order against him that while did not prevent him from the residence specifically, had the effect of him not being able to live there. He claimed that was "ouster" and had a case he purported to show he should get rent because of the theory of ouster in his partition suit. I had mentioned one problem with pro per's is that they glom onto any sliver that might help them. And the case certainly had the sliver. However, it found there was an ouster based on the facts and defined ouster as:

“ ‘An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession.’  [Citation.]”  (Estate of Hughes, supra, 5 Cal.App.4th at p. 1612.)   Ouster can be established “by a cotenant's unambiguous conduct manifesting an intent to exclude another cotenant from gaining or sharing possession of jointly owned property” (id. at p. 1614), or “by showing that the cotenant in possession has refused to allow the excluded cotenant to use and possess the premises.”  (5 Miller & Starr, Cal. Real Estate, supra, § 12:5, p. 12–13, citing Estate of Hughes, supra, at pp. 1612–1616.)   Ouster consists of acts of an adverse character, such as a claim by the ousting cotenant to the whole title or a “refus[al] to permit [the ousted cotenant] to enter” the property.  (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548.)   In Zaslow, ouster was proved by the change of door locks, posting of “no trespassing” signs on the property, and the denial of cotenant's admittance on demand.  (Ibid.)
The best part is, that was the definition from the case he was relying upon for his basic theory. Res ipsa loquitur.
 


quincy

Senior Member
What is the name of your state (only U.S. law)? CA

In a recent thread by ProperProPer at:
https://forum.freeadvice.com/other-real-estate-law-questions-11/does-womens-use-restraining-order-constitute-ouster-623978-p2.html

The OP (assuming he was the principal in Pro se for the thread), had a domestic violence order against him that while did not prevent him from the residence specifically, had the effect of him not being able to live there. He claimed that was "ouster" and had a case he purported to show he should get rent because of the theory of ouster in his partition suit. I had mentioned one problem with pro per's is that they glom onto any sliver that might help them. And the case certainly had the sliver. However, it found there was an ouster based on the facts and defined ouster as:

The best part is, that was the definition from the case he was relying upon for his basic theory. Res ipsa loquitur.
He was nicely trying to sidestep the domestic violence restraining order - a court order that prohibited him from being near the residence of the GF, a court order that can allow for even the changing of locks, a court order that defeats his claim of ouster by the GF.

A link to the California Family Code Section 6231: http://www.leginfo.ca.gov/cgi-bin/displaycode? section=fam&group=06001-07000&file=6320-6327

With that said, the poster is not really worth additional discussion. His postings on this forum were suspect from the start and the thread was locked by the moderator for a reason.
 

ProperProPer

Junior Member
Assumption wrong

Sorry guys you missed the main point of the argument from that thread.

The RO didn't establish ouster. The letter pursuant to Civil Code 843 established ouster after it was ignored for 60 days.

Per Estate of Hughes: "In addition, the fact that ouster may occur in a peaceful, nonaggressive manner through lawful means is consistent with the policy underlying the 1984 legislation resulting in the enactment of Civil Code section 843." That is, even assuming exclusion of BF was legal, it does not moot ouster.

The real question is OK, an RO is in place and a cotenant wants to sell. Does GF now have any duty to him? Civil Code 843 say that she does. The fact that she didn't act on her duty in this case establishes ouster.

(Cf Coulter v. McNeil also an RO/ouster/partition case in CA, but unpublished, sister used DV-RO against brother to keep him from jointly inherited property, brother awarded partition and imputed rent for over a decade)
 
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tranquility

Senior Member
Sorry guys you missed the main point of the argument from that thread.

The RO didn't establish ouster. The letter pursuant to Civil Code 843 established ouster after it was ignored for 60 days.

Per Estate of Hughes: "In addition, the fact that ouster may occur in a peaceful, nonaggressive manner through lawful means is consistent with the policy underlying the 1984 legislation resulting in the enactment of Civil Code section 843." That is, even assuming exclusion of BF was legal, it does not moot ouster.

The real question is OK, an RO is in place and a cotenant wants to sell. Does GF now have any duty to him? Civil Code 843 say that she does. The fact that she didn't act on her duty in this case establishes ouster.

(Cf Coulter v. McNeil also an RO/ouster/partition case in CA, but unpublished, sister used DV-RO against brother to keep him from jointly inherited property, brother awarded partition and imputed rent for over a decade)
How's the case working out so far?

This section does not apply to the extent the tenant out of
possession is not entitled to possession or an alternative remedy is
provided under the terms of an agreement between the cotenants or the
instrument creating the cotenancy or another written instrument that
indicates the possessory rights or remedies of the cotenants.
 

ProperProPer

Junior Member
What case?

What case are you asking about? Coulter v McNeil (http://caselaw.findlaw.com/ca-court-of-appeal/1575933.html)? That ended precisely as expected... Woman who abused the RO process was ordered to pay imputed rent to her unjustly excluded brother for over a decade.

Again I am afraid you miss the point. An RO is intended to protect, not affect property rights as if it did, it would violate fifth amendment. BF has right to possess property even with an RO and CC 843 is fatal to GF. Simple as that.
 
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quincy

Senior Member
What case are you asking about?

Coulter v. McNeil.? That ended precisely as expected... Woman who abused the RO process was ordered to pay imputed rent to her unjustly excluded boyfriend for over a decade.
I believe tranquility was asking about YOUR case. I suspect he already knows the results of the other cases. ;)
 
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