Plaintiffs fail to successfully rebut Defendants' position. The best they can do is cite to a New Mexico case which stands for the proposition that denial of access to a co-tenant may be ouster — but that case only supports Defendants' position because it involves ouster from real property that was part of an estate.See Doc. 195 (citing Trujillo v. Lopez, 106 N.M. 157, 161, 540 P.2d. 707, 711 (Ct.App 1987). Last, Defendants argue that, even assuming ouster can apply in this situation, no ouster occurred.
Williams v. Sinclair Refining Co., 39 N.M. 388, 392, 47 P.2d 910, 912 (1935) (quoting Hamby v. Wall, 48 Ark. 135, 137, 2 S.W. 705, 706 (1887)).See also Trujillo v. Lopez (Estate of Lopez), 106 N.M. 157, 160, 740 P.2d 707, 711 (Ct.App. 1987) ("Mere occupation does not render a tenant liable to his co-tenant for use and occupation of the property, as each has the right to occupy the premises, but neither tenant can lawfully exclude the other.") Therefore, as long as Defendant was on the deed, he had an equal right with the Trustee to occupy the premises rent free. This result also addresses Trustee's argument that Defendant is unjustly enriched by living rent free; it is not unjust enrichment to use what one is entitled to use.
We hold that the district court did not abuse its discretion in ruling on the petition to remove without holding an evidentiary hearing. {6} The final argument raised in the memorandum in opposition is Heirs' contention that once they filed their complaint requesting partition and private sale of the estate's property, the district court should have followed the procedures outlined in NMSA 1978, Sections 42-5-1 to -7 (1978). Heirs' argument is answered by Matter of Estate of Lopez, 1987-NMCA-087, ¶¶ 17-18, 106 N.M. 157, 740 P.2d 707, in which we held that where heirs of an estate request partition, the issue should be handled in the probate proceedings rather than in a separate action brought under Section 42-5-1 to -7. This rule is especially apt in this case, for two reasons: first, the complaint was not filed as a separate lawsuit but as a pleading in the pending probate case; and second, the complaint was filed extremely late in the probate proceedings, after a contract to sell the property had already been executed by the personal representative.
Estate of Baldwin, 442 A.2d 529, 532 (Me. 1982); cf. In re Estate of Lopez, 106 N.M. 157, 161, 740 P.2d 707, 711 (Ct.App. 1987) (trial court directed to make findings on whether personal representative had a right to possess property and oust cotenant). She was to give notice to all heirs and devisees under the will no later than ten days after her appointment as personal representative.
Proof of occupancy of realty by one party, without more, does not render a tenant liable to a cotenant for use of the property because each has a right to occupy the premises. In re Estate of Lopez, 106 N.M. 157, 740 P.2d 707 (Ct.App. 1987). See also NMSA 1978, § 40-3-3 (Repl.