106 N.E.2d 77 (Ohio 1952)
The case involves real property consisting of a six-room brick and stucco house and garage held by tenants in common.1 Plaintiff Cohen occupied the premises exclusively for several years while holding an undivided one-half interest.2 The defendants held the other undivided one-half interest.3
While in sole possession, the plaintiff rented the garage to a third party and kept all rental income without notifying the defendants.4 The plaintiff did not prohibit the defendants from entering the premises or the garage, and no acts of adverse possession or ouster were shown.5 The property had not been partitioned, leaving each party with an undivided interest in the whole.6
The Court of Common Pleas held that the tenant out of possession is entitled to recover, but the Court of Appeals held to the contrary.7 The Supreme Court of Ohio accepted the case for further review.8
Whether one tenant in common of real property, living in and solely occupying the premises for a period of years, is liable to his cotenant for a proportionate share of the fair value of such use and occupancy?9
Section 12046, General Code, provides that one tenant in common may recover from another his share of rents and profits received by such tenant in common from the estate, according to the justice and equity of the case, and under the construction in West v. Weyer a tenant in common who uses the common estate simply to pasture his cattle, or by analogy occupies it as a residence, is liable to account to his cotenants for their share of the value of such use as for rents and profits received.10
Yes. The plaintiff occupied the six-room brick and stucco house and garage exclusively for several years while holding an undivided one-half interest.11 The defendants held the remaining undivided one-half interest.12 Although the plaintiff did not prohibit the defendants from entering the premises, she rented the garage and retained all income without notice to the defendants.13
No ouster occurred and the property remained unpartitioned.14 Nevertheless, the plaintiff received the full benefit of occupancy including the defendants' undivided share.15 Therefore, under the statute and the West v. Weyer precedent, the plaintiff is liable to account to the defendants for their proportionate share of the fair rental value of the use and occupancy according to the justice and equity of the case.16
The plaintiff tenant in common who solely occupied the premises is liable to her cotenants for a proportionate share of the fair value of such use and occupancy.17