Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No.TC021856, Rose H. Hom, Judge.
Patricia A. Rush for Defendant and Appellant.
Diane B. Weissburg for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Kenneth Coulter brought the instant action for partition sale of real property he owns as tenant in common with his sister, defendant Claretta McNeil Yates (McNeil), and for distribution of proceeds. McNeil appeals from the resulting judgment after trial contending the trial court erred in awarding Coulter rent and in denying her credits for Coulter’s proportionate share of the payments she made for repairs, and toward real estate taxes, insurance, improvements, and on the first trust deed secured by the property. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Background
McNeil and Coulter inherited the subject property, located in Compton, from their mother after she died in 1986. Coulter brought this lawsuit for partition by sale of the property and for accounting in April 2008.
At trial, the parties testified to the following: After their mother’s death, McNeil, Coulter, and their two siblings variously occupied the property. Coulter moved out sometime in 1988 or 1989. In the spring 1993 a fire rendered the property uninhabitable and it remained vacant until 1995.
Nearly a decade after their mother’s death, McNeil commenced probate of her mother’s estate (Estate of Claudia Wilson, Case No. BP-031-815). In 1995, the probate court authorized McNeil to borrow $67,300 to repair the fire damage and pay the bills of the probate estate. The remaining balance on that first mortgage is roughly the equivalent sum.
In 1997, the probate court appointed McNeil administrator of their mother’s estate and ruled that McNeil, Coulter, and their two siblings each held a one-quarter interest in the property. McNeil then purchased the interest of her other two siblings and now holds three-quarters interest to Coulter’s one-quarter interest in the property.
McNeil stipulated that she took out a loan, without Coulter’s permission, and secured it with second mortgage on the property for the purpose of buying the interest of her two other siblings. This mortgage remains her sole responsibility. The parties also stipulated that the value of the property at the time of partition was $200,000.
2. Coulter’s testimony
The reason Coulter moved off the property in 1987, was that he did not get along with his sisters. Coulter testified that when he left in 1987, before the property had gone through probate, McNeil agreed to pay him $350 per month in rent, but she never paid him rent.
Coulter explained that after McNeil returned to the premises in the fall of 1995, she would not allow him back onto the property, claiming he had no interest in it. Coulter tried periodically to move back but McNeil refused to allow him in. In early 1997, Coulter obtained a restraining order against McNeil and came to the property to show it to her. McNeil called the police who told Coulter, because the restraining order was against McNeil at the house, that he would have to leave the property.
Coulter came back several times a year after 1995 to check up on the property. He observed that people dealt drugs and engaged in prostitution at the property. Neighbors complained to him about the illegal conduct.
Coulter asked McNeil how much the mortgage was on the property, but she refused to tell him. He asked her for an itemized list of repairs after the fire, but she never gave it to him. Once a year around tax time Coulter asked McNeil for the documentation on the property, but never received anything. McNeil told him she paid the real estate taxes, but Coulter discovered that McNeil paid no taxes between 1995 and 1998. Although McNeil was supposed to pay these back taxes, their brother was the one who brought the property taxes current. McNeil admitted she never provided Coulter with the information or the documentation he requested about insurance or mortgages on the property. She also never asked Coulter to contribute to any of these expenses.
At some undisclosed time, Coulter went to the probate court and was appointed administrator of their mother’s estate instead of McNeil. He explained the reason for the change in appointment was that McNeil had moved onto the property without permission, had taken out loans against the property, and failed to maintain the premises or pay taxes.
Coulter’s expert, John Pyster, conducted an appraisal of the property on May 21, 2009. He found that the house was in average condition, but was not well maintained. He noticed a lot of deferred maintenance, holes in the walls, doors, missing flooring, missing cabinet doors, wood rot, and water stains in the ceiling from a roof leak. He also found an electrical cord out to a moveable shed, indicating someone was living in the shed. Had the deferred maintenance been corrected, Pyster testified, the property’s value would be higher. In his review of the public records for the property, Pyster found no deed into Coulter.
3. McNeil’s testimony
McNeil denied that she tried to keep Coulter off the premises. Over the years, Coulter has asked McNeil to pay him for his interest in the property and McNeil has twice offered to buy him out, but the two disagreed about the value of his interest.
In 1997, Coulter told the Compton Building Department about their mother’s conversion of the garage on the property into a bedroom, after which McNeil pulled the necessary permits to “legalize” that bedroom. She testified she painted the outside and inside, laid new carpet, installed new drapes, installed a new sink and tiles in the bathroom. Pyster testified that the value of the additional bedroom would be about $4000.
McNeil testified that she has paid $689.97 per month since June 1995 on the first mortgage, plus $50 per month toward insurance. The property taxes are $800 per year.
4. The trial court ruling
The trial court issued its interlocutory judgment in July 2009. The court found that beginning in early 1987, McNeil “ousted [Coulter] from the Subject Property” by living on the property, denying Coulter access, maintaining control and possession of the property, and by calling the police on Coulter and obtaining a restraining order in an effort to keep him from entering the premises. The court found McNeil never paid money to Coulter for his one-quarter interest, nor provided Coulter with an accounting relating to the property. Additionally, the court found that McNeil failed to sell the property when the value was significantly greater than the current market value.
The court denied McNeil credit for her payments against the first mortgage, the property taxes, and insurance because she had been living on the property since the close of probate. The court denied McNeil’s request for credit for improvements she made, including the “ ‘legalization’ of [the] third bedroom.” Calculating the division of proceeds, the court took the stipulated current value of the property of $200,000, and subtracted the $63,000 mortgage obtained during probate for the benefit of all of the mother’s heirs, for a total of $137,000. The court declared Coulter owner, as tenant in common, of one-quarter of the property, and dividing the $137,000 property value by that amount, determined Coulter’s interest was $34,250. The court next awarded Coulter $49,350 for the loss of use and enjoyment of the premises, calculated at $350 per month for 141 months (September 1997 to June 2009). The court also awarded Coulter costs. The court then set a hearing to determine whether to order the property sold to allow a split of the proceeds pursuant to the above calculations.
At the subsequent hearing, McNeil advised the court that she did not wish to purchase Coulter’s interest in the property. The court ruled that its tentative interlocutory judgment would be its final judgment and ordered the property to be sold and the proceeds divided.
The court signed the judgment. McNeil filed a petition for writ of mandate to stay sale of the property. This court deemed the writ petition a notice of appeal.
DISCUSSION
Partition actions (Code Civ. Proc., § 872.010 et seq.) are governed by broad equitable principles. “ ‘[T]he courts have adhered, in adjusting the rights of cotenants and defining their interest in the common property, to the classic formulas encapsulated in the maxims that equity is equality and he who seeks equity must do equity, and have dispensed equitable relief only upon condition that the equitable rights of a cotenant are respected and safeguarded. [Citations.]’ [Citation.]” (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035.)
McNeil contends that the trial court abused its discretion in granting Coulter rental payments and in denying her claim for a credit for improvements she made, and for one-quarter of the monthly payments for the mortgage, taxes, insurance, and repairs. Coulter counters that the trial court found that McNeil ousted him from the property and so he was entitled to recover the rental value of the property from McNeil. He also argues that crediting McNeil with the value of improvements that occurred after McNeil ousted him would materially injure him, particularly in light of the depressed housing market at the time of trial.
1. The trial court did not err in awarding Coulter the imputed rental value of the property because, as a matter of law, McNeil ousted Coulter.
Tenants in common have the right to occupy the common property. (Brunscher v. Reagh (1958) 164 Cal.App.2d 174, 176.) When one tenant in common occupies the property, the out-of-possession cotenant is generally not entitled to recover the imputed rental value of the property from the cotenant in possession. (Id. at pp. 176-177; see 5 Miller & Starr, Cal. Real Estate (3d ed. 2000) Holding Title, § 12:4, p. 12-11 (Miller & Starr).) Three exceptions to this rule exist in California: when there is an agreement between the cotenants to share the rents and profits from the property (cf. Black v. Black (1949) 91 Cal.App.2d 328, 332); when one cotenant has been ousted from possession by the other (Estate of Hughes (1992) 5 Cal.App.4th 1607, 1611-1612); or, in a partition action, when recovery of the imputed rental value by the cotenant out of possession would be “just and consonant with equitable principles.” (See Hunter v. Schultz (1966) 240 Cal.App.2d 24, 32.) The trial court relied on the second such exception, ouster.
“ ‘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.)
Ouster by adverse possession can be undermined by the tenant-in-possession’s acknowledgement of the other’s title. (Preciado v. Wilde (2006) 139 Cal.App.4th 321, 326.) In Preciado, the plaintiff undermined his claim of adverse possession against his cotenant by trying to buy the cotenant’s interest in the property. (Ibid.)
Determination whether an ouster occurred is a legal question that we decide de novo. (Estate of Hughes, supra, 5 Cal.App.4th at p. 1612.) Although the existence of ouster is a legal question, we defer to the trial court’s foundational factual findings. (Ibid.)
Here, the trial court ruled repeatedly that McNeil “denied [Coulter’s] quarter interest in the Subject Property [AND/OR] ousted [Coulter] from the Subject Property.” We agree with the trial court. Coulter testified he periodically attempted to move back onto the property but McNeil barred him and even called the police once when Coulter attempted to enter. There is also evidence that McNeil moved onto the property without permission of her siblings, and maintained control of the property by denying Coulter any information about the costs of maintaining it. “The refusal to permit entry after a request for entry has been made by the cotenant out of possession is, by itself, an ouster.” (5 Miller & Starr, Cal. Real Estate, supra, § 12:5, p. 12-13, italics added; Greer v. Tripp (1880) 56 Cal. 209, 212 [refusal after proper demand by tenant in common in possession to admit cotenant into possession “ ‘is itself an ouster, and dispenses with the necessity of further proof on that point.’ ”].)
On appeal, McNeil contends that she never denied that Coulter held an interest in the property, citing her attempts to buy his interest. However, the trial court was entitled to disbelieve McNeil. When determining ouster, the trial court makes the factual findings. (Estate of Hughes, supra, 5 Cal.App.4th at p. 1612.) “[I]t is not the function of a reviewing court to reweigh the evidence, judge credibility of witnesses, or to determine the weight to be given expert testimony. Those are exclusively functions of the trier of fact. As has been so often said, our function as a reviewing court begins and ends with the determination whether there is any substantial evidence, contradicted or uncontradicted, which would support the trial court’s findings. [Citations.]” (Beckman Instruments, Inc. v. County of Orange (1975) 53 Cal.App.3d 767, 775-776.) There is ample evidence of ouster. Accordingly, we conclude that the court did not err in awarding Coulter the rental value of the property on the basis of ouster. (Brunscher v. Reagh, supra, 164 Cal.App.2d at pp. 176-177.)
2. The trial court did not err in denying McNeil credits for her improvements to the property.
Next, McNeil contends the trial court abused its discretion in denying her a credit for the money she spent to obtain the permits to “legalize” the third bedroom and for Coulter’s proportionate share (one-quarter interest) of the taxes, insurance, repairs, and payments on the first mortgage.
“Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each cotenant’s interest. Credits include expenditures in excess of the cotenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title. [Citations.]” (Wallace v. Daley, supra, 220 Cal.App.3d at pp. 1035-1036, citing Code Civ. Proc., § 872.140.)
Code of Civil Procedure section 872.140 reads, “The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.”
Code of Civil Procedure section 873.220 establishes that courts must divide property in a partition action, “as far as practical and where it can be done without material injury to other cotenants... so as to allot to a party any portion that embraces improvements made by that party, and the value of the improvements must be excluded from the valuation in making the allotment.” (Wallace v. Daley, supra, 220 Cal.App.3d at p. 1036, italics added.) This is so “ ‘[e]ven though one cotenant does not consent to the making of the improvement, since an action for partition is essentially equitable in its nature, a court of equity is required to take into account the improvements which another cotenant, at his own cost in good faith, placed on the property which enhanced its value....’ [Citation.]” (Ibid.) Given partition actions are equitable in nature, payments of interest, insurance, and taxes do not always justify a credit.
Code of Civil Procedure section 873.220 reads “As far as practical, and to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot to a party any portion that embraces improvements made by that party or that party’s predecessor in interest. In such division and allotment, the value of such improvements shall be excluded.”
Both parties rely on Regalado v. Regalado (1961) 198 Cal.App.2d 549. Regalado stated, “We know of no rule of law requiring a cotenant out of possession to contribute for moneys paid in connection with the property by the cotenant in possession while during the very period for which the moneys were paid he asserted exclusive ownership in himself.” (Id. at p. 552, italics added.) Regalado went on to explain that “in an action for partition the defendant cannot have an accounting and contribution from his cotenant for the latter’s proportionate part of expenditures made by the defendant for the benefit of the common property if the expenditures were made more than two years prior to the commencement of the action and after the defendant had repudiated the existence of the cotenancy. [Citations.]” (Id. at pp. 553-554, italics added.)
Here, the evidence shows that McNeil did not pay the taxes on the property between 1995 and 1998, her sibling did. As for the taxes for the period from 1999 and 2009, and the mortgage and insurance payments, and the expenditures for repairs, once having determined that McNeil had ousted Coulter, the trial court sitting in equity was entitled under Regalado to deny McNeil reimbursement from Coulter for his share of those expenses. (Regalado v. Regalado, supra, 198 Cal.App.2d at pp. 552-554.) That is, McNeil’s payment of these expenses was not “for the common benefit” (Wallace v. Daley, supra, 220 Cal.App.3d at pp. 1035-1036), but to enable her to live on the property.
Coulter argues that crediting McNeil with the value of an improvement that occurred after McNeil ousted Coulter from the house would materially injure him, particularly in light of the depressed housing market at the time. We agree. Not only is there ample evidence from which the trial court could conclude that McNeil did not protect the property, failed to maintain it, and allowed illegal activity to occur on the premises so that McNeil’s payments did not protect and preserve title (Wallace v. Daley, supra, 220 Cal.App.3d at pp. 1035-1036), but the court also heard that McNeil delayed in selling the property when it was worth much more, thus wasting Coulter’s interest.
The trial court’s ruling granting Coulter imputed rental value and denying McNeil credits for taxes, insurance, improvements, and mortgage payments was premised on its finding that McNeil ousted Coulter and was the sole beneficiary of those payments. Given our conclusion as a matter of law that ouster occurred here, the trial court’s rulings must be affirmed.
DISPOSITION
The judgment is affirmed. Each party is to bear its own costs on appeal.
We concur:KLEIN, P. J., CROSKEY, J.