O.C.G.A. § 44-6-121 (2019)

Annotations

JUDICIAL DECISIONS Right to possess joint property. - Every tenant in common has the right to possess joint property; if each tenant does not receive more than that tenant’s share of the rents and profits thereof, that tenant is not liable to the other’s cotenant. Pugh v. Moore, 207 Ga. 453, 62 S.E.2d 153 (1950). By affidavit, heirs showed that a cotenant did not meet the requirements of O.C.G.A. § 44-6-123 by averring that the cotenant took no action to oust the heirs from the property in question, to demand and retain exclusive possession, or to give actual notice of adverse possession; the burden shifted to the cotenant to point to a conflict on this issue, but in an affidavit, the cotenant only showed that the cotenant paid the property taxes and that the heirs did not use the property or question the cotenant’s right to be on the property, which did not establish an ouster or to satisfy an ‘‘express notice’’ or a ‘‘hostile claim’’ criterion, and summary judgment in favor of the heirs was proper in their claim for, inter alia, an accounting relating to the property. Ward v. Morgan, 280 Ga. 569, 629 S.E.2d 230 (2006). Possession of more than proportionate share not ouster. - That one cotenant may occupy more than one’s proportionate share of the property, or even that one may be in possession of all of the property, does not necessarily imply an ouster, the presumption being that one’s possession is not adverse, but is in common with the others, or for the common benefit, unless and until the contrary appears. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946).

Rent payment may be required. - Occupancy by one cotenant of the joint property, by the consent of the other, does not necessarily relieve that cotenant from the payment of the rent. Shiels v. Stark, 14 Ga. 429 (1854). When a tenant in common appropriates all of the premises to the tenant’s exclusive use, the tenant would be liable to the cotenant for rent. Jackson v. Lipham, 158 Ga. 557, 123 S.E. 887 (1924). Remedy for possession of more than proportionate share. - When there has been no actual ouster of the plaintiffs, no exclusive possession by the defendant after demand, and no express notice by defendant of a claim of adverse possession, no action can be brought by the tenant in common to recover possession from one of their number. The remedy given to them, if defendant is in possession of more than defendant’s share of the premises, or if defendant has received more than defendant’s share of the income and profits, is an application for an accounting, or for partition. Daniel v. Daniel, 102 Ga. 181, 28 S.E. 167 (1897). Right of spouse to rents during and after divorce. - When spouses retained tenancies in common in the marital abode through and after their divorce, the wife was entitled to receive from her former husband her share of the rents from and after the time the condominium was leased to third parties, she was not entitled to rents from her former husband during his occupancy of the premises and she was not liable for contribution toward the expenses of maintaining the condominium for the period during

which the husband was not liable for rent. White v. Lee, 250 Ga. 688, 300 S.E.2d 517 (1983). Tenants in common may sue severally to recover their interest, but their recovery is limited to their share. Dozier v. Wallace, 169 Ga. App. 126, 311 S.E.2d 839 (1983). Tenant cannot bind nonconsenting cotenants in disposition of property. - General rule is that one tenant in common cannot bind one’s nonconsenting cotenants in any disposition of their undivided interest in the common property. Booth v. Watson, 153 Ga. App. 672, 266 S.E.2d 326 (1980). Right to share in profits. - Cotenants have the right to share in the profits of the common property, according to their respective interests. Slade v. Rudman Resources, Inc., 237 Ga. 848, 230 S.E.2d 284 (1976). Limitation on damages recoverable. - When, in an action by one of two owners in common of personalty against the other to recover one half of the rents and profits of the common property, there was no evidence of actual ouster, exclusive possession by the latter after demand by the former, or of express notice by the latter to the former of adverse possession, there was no error in the charge of the court which limited the plaintiff ’s recovery to one half of whatever rents the defendant actually received. Smith v. Smith, 141 Ga. 629, 81 S.E. 895 (1914); Hunt v. Harris, 149 Ga. 225, 99 S.E. 884 (1919); Houseworth v. Crews, 29 Ga. App. 579, 116 S.E. 217 (1923). In an action brought former Code 1933, §§ 85-1003 and 85-1004 (see O.C.G.A. §§ 44-6-121 and 44-6-122) by tenants in common to recover the tenants’ share of the rents and profits from the defendants who were in possession of the land owned in common, a recovery therefor can be had only up to the time the suit was commenced, and a former action between the same parties for the rents and profits on the same property, which was still pending, did not abate so much of the present suit as seeks recovery of the plaintiffs’ share of the rents and profits accruing since the filing of the former action. Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951). In an action by a tenant in common for that tenant’s share of rents, the tenant may recover damages only up to the time of bringing the suit, the reason being that the

failure to share rents may or may not be continued after the suit is commenced, and if continued, a new cause of action arises therefor. Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951). Right to extract minerals. - This statute, by negative implication, appears to recognize the right of a cotenant to extract minerals from the common estate so long as an accounting is given. Slade v. Rudman Resources, Inc., 237 Ga. 848, 230 S.E.2d 284 (1976) (see O.C.G.A. § 44-6-121). Without consent of cotenants. - Cotenant has the right to go on the land and mine the minerals the cotenant finds without the consent of all cotenants. Slade v. Rudman Resources, Inc., 237 Ga. 848, 230 S.E.2d 284 (1976). Right to minerals may be conveyed. - Because a cotenant has the right to enter and mine the common property without the consent of one’s cotenants, but subject to one’s accounting to the other cotenants for their respective shares, this right is conveyed, by necessary implication, when such a cotenant conveys one’s undivided interest in the minerals on or under the common property. Slade v. Rudman Resources, Inc., 237 Ga. 848, 230 S.E.2d 284 (1976). Cultivation of portion of property. - Tenant in common may cultivate a portion of the property without payment of rent, unless such occupied portion constitutes a greater part of the premises than the tenant would have been entitled to on a proper division of the property. Thompson v. Thompson, 31 Ga. App. 340, 121 S.E. 586 (1923). Action in trover. - While as a general rule one joint tenant cannot maintain trover against a cotenant, for the reason that the possession of one is the possession of both, yet the tenant may do so when the tenant in possession sets up an adverse claim to the whole property to the exclusion of the cotenant. Yeager v. Weeks, 74 Ga. App. 84, 39 S.E.2d 84 (1946). One cotenant may sue another cotenant in trover when the property has been destroyed or sold, and may maintain it against a stranger when one cotenant sells the whole to the stranger. Mar-Vel, Inc. v. Counts, 127 Ga. App. 634, 194 S.E.2d 503 (1972). Liability of cotenant for improvements. - If a tenant in common improves the property while in possession and claiming to be

sole owner, and with no permission or request from the cotenant, the latter is not chargeable with the value of such improvements, beyond the cotenant’s share of the rents chargeable to the former. Bazemore v. Davis, 55 Ga. 504 (1875). Possession of land as notice of right and title. - Former Code 1933, § 85-1003 (see O.C.G.A. § 44-6-121) must be construed in connection with former Code 1933, § 85-408 (see O.C.G.A. § 44-5-169), relating to possession of land as notice of right and title. Wren v. Wren, 199 Ga. 851, 36 S.E.2d 77 (1945). Cited in Thompson v. Sanders, 113 Ga. 1024, 39 S.E. 419 (1901); Daniel v. Daniel, 22 Ga. App. 95, 95 S.E. 323 (1918); Cook v. McArthur, 31 Ga. App. 248, 120 S.E. 551

(1923); Horn v. Towson, 163 Ga. 37, 135 S.E. 487 (1926); Wallis v. Watson, 184 Ga. 38, 190 S.E. 360 (1937); Zeagler v. Zeagler, 190 Ga. 220, 9 S.E.2d 263 (1940); Lewis v. Patterson, 191 Ga. 348, 12 S.E.2d 593 (1940); Harris v. Rowe, 200 Ga. 265, 36 S.E.2d 787 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Ballenger v. Houston, 207 Ga. 438, 62 S.E.2d 189 (1950); Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951); Lankford v. Dockery, 87 Ga. App. 813, 75 S.E.2d 340 (1953); Brown v. Granite Holding Corp., 221 Ga. 560, 146 S.E.2d 289 (1965); White v. Howell, 117 Ga. App. 778, 161 S.E.2d 892 (1968); Baker v. Daniels, 244 Ga. 105, 259 S.E.2d 54 (1979); Brewer v. Brewer, 156 Ga. App. 268, 274 S.E.2d 671 (1980).

RESEARCH REFERENCES Am. Jur. 2d. - 20 Am. Jur. 2d, Cotenancy and Joint Ownership, § 33 et seq. Am. Jur. Pleading and Practice Forms. - 24B Am. Jur. Pleading and Practice Forms, Waste, § 16. C.J.S. - 41 C.J.S., Husband and Wife, §§ 39, 40. 86 C.J.S., Tenancy in Common, §§ 8 et seq., 21 et seq., 51 et seq., 76 et seq., 115 et seq. ALR. - Rights of cotenants inter se as to timber, 2 ALR 993; 41 ALR 582. Rights of cotenants inter se as to oil and gas, 40 ALR 1400; 91 ALR 205. Construction and effect of statutory provision for double or treble damages against tenant committing waste, 45 ALR 771. Rights and remedies of tenant in common who pays his cotenant’s share of taxes or assessments, 48 ALR 586. Lump-sum assessment for taxes or public improvement against property owned by cotenants in undivided shares, 80 ALR 862. Right of cotenant to acquire and assert adverse title or interest as against other cotenant, 85 ALR 1535. Contribution or allowance as between cotenants in remainder as affected by fact that one or more of them owns, or did own, life estate or an interest therein, 98 ALR 859. Cotenant’s right to contribution in respect of taxes, improvements, or repairs as subject to reduction on account of rents and profits for which he is not otherwise responsible, 136 ALR 1022.

Provision in fire insurance policy against other insurance as applied to property owned jointly or by cotenants, 143 ALR 425. Right of colessor in community oil or gas lease to lessen production and royalties thereunder by operations on land released from or not covered by the lease, 167 ALR 1225. Cotenancy as factor in determining representation of property owners in petition for or remonstrance against public improvement, 3 ALR2d 127. Basis of computation of cotenant’s accountability for minerals and timber removed from the property, 5 ALR2d 1368. Capacity of cotenant to maintain suit to set aside conveyance of interest of another cotenant because of fraud, undue influence, or incompetency, 7 ALR2d 1317. Rights and remedies as between cotenants of cemetery lots respecting burials therein, 10 ALR2d 219. Survivor’s rights to contents of safe-deposit box leased or used jointly with another, 14 ALR2d 948. Effect of lease given by part only of cotenants, 49 ALR2d 797. Accountability of cotenants for rents and profits or use and occupation, 51 ALR2d 388. Grant of part of cotenancy land, taken from less than all cotenants, as subject of protection through partition, 77 ALR2d 1376.

Effect of cotenant’s attempt to devise or bequeath specific portion of property held in common, 97 ALR2d 739. Larceny: cotenant taking cotenancy property, 17 ALR3d 1394.

Felonious killing of one cotenant or tenant by the entireties by the other as affecting the latter’s right in the property, 42 ALR3d 1116.