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Bennett v. Mixson

A-5645-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

TENANCY IN COMMON; PARTITION—If a co-tenant in possession of a commonly owned property demands contribution toward operating and maintenance expenses, then the rule that such a tenant has no obligation to pay for use and occupancy is set aside.

A romantically involved couple purchased a three bedroom house. Four years later, the man left the property after the woman obtained a domestic violence restraining order against him. The order was subsequently dismissed by the Court and the man returned for approximately two and one-half months when, once again, he left and never returned to the property. In 1997, he filed a complaint for partition of the property. The lower court determined the fair market value of the property and then reduced the man’s one-half share by an amount that represented one-half of the woman’s payments for real estate taxes and home repairs. The lower court denied the man’s use and occupancy claim, concluding that because the man “never attempted to return to the property between 1990 and the date of trial, [he] thus was not ‘ousted from the property,’ [and] he was not entitled to a use and occupancy credit.” The Appellate Division ruled that the lower court did not understand the law. It is true that generally, “on a sale of commonly owned property ‘an owner who has paid less than his pro-rata share of operating and maintenance expenses of the property, must account to [a] co-owner who has contributed more than his pro-rata share, and that is true even if the former had been out of possession and the latter in possession.’” Further, “where one tenant-in-common occupies the property, he or she does not have an obligation to make any contribution to those tenants-in-common who do not occupy the premises.” However, if the co-tenant in possession of the property “demands contribution toward operating and maintenance expenses from his or her co-tenants, fairness and equity require that the co-tenant demanding costs for maintenance and operation of the premises allow a corresponding credit for his or her sole occupancy of the property.” To do otherwise, would “require a contribution to operating and maintenance expenses from someone who ... had enjoyed none of the benefits of occupancy” and such a result would be “patently unfair.” If such a credit were not allowed, the woman would “have lived rent free for ... twelve years, with [the man] subsidizing her costs of maintaining the property.”

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