GASPARE V. BRISCIANO, APPELLANT,
v.
JUNE BYARD, F/K/A JUNE BRISCIANO, APPELLEE
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A divorced couple owned a home as tenants-in-common. The husband remained in possession, paid the mortgage and taxes, while the wife later sought partition. The trial court awarded the husband a credit for payments made but offset it with the fair rental value owed to the wife, which exceeded his credit. The appellate court affirmed, holding that when a cotenant in possession seeks contribution for improvements and mortgage payments, such claims may be offset by the reasonable rental value of the property.
The trial court did not err in offsetting the husband's contribution for mortgage payments, taxes, and insurance with the fair rental value of the property, because when a cotenant in possession seeks contribution for amounts expended in improvement or preservation of property, such claims may be offset by the reasonable rental value of the property.
[1] A cotenant in possession who seeks contribution for mortgage payments, taxes, and insurance may have that claim offset by the reasonable rental value of the property.
[2] A cotenant in exclusive possession of real property is generally not liable to a cotenant out of possession for the rental value of the property unless the possession is…
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Join FLexlaw to unlock all legal intelligence“if the cotenant in possession seeks contribution for amounts expended in improvement or preservation of property, including payments for mortgages, insurance, and taxes, that claim may be offset by the reasonable rental value of the property”
States the controlling legal rule that permits offsetting a possessing cotenant's contribution claims with fair rental value owed to the non-possessing cotenant.
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Join FLexlaw to unlock all legal intelligenceThe parties purchased a home in November 1961 while married. They separated in 1968 and divorced in February 1970. From separation onward, Mr. Briscia…
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PER CURIAM.
This cause is before us on appeal from a final order of partition. Appellant contends that the trial court erred in awarding an offset for the fair rental value to the cotenant not in possession.
On November 1, 1961, the parties, then married, purchased a home in Jacksonville Florida. In 1968, the parties separated, and appellee obtained a divorce, which was final in February of 1970. From the time of the separation, the former husband, Mr. Brisciano, resided in the home and made all payments thereon. There were no children, and the final judgment made no mention of the home.
On March 30, 1990, the former wife, Ms. Byard, filed a complaint for partition, asserting that she owned a one-half interest as tenant-in-common in the home. Mr. Brisciano counterpetitioned, seeking contribution for mortgage payments, upkeep, and taxes.
At final hearing, Byard testified that she never asked Brisciano to vacate the home. The parties had an understanding that Brisciano would live in the home and pay the mortgage and taxes on the residence. However, no formal agreement was entered between the parties.
Brisciano testified that the parties made an agreement that he would remain in the home and pay the mortgage, taxes, and insurance, and Byard would get an unimproved lot behind the house.
The trial court found that Brisciano was entitled to a credit of $21,075.54 for the payments made on the house. However, the court then gave Byard a credit for the fair rental value of the property, without expressing what that value was, but stating that the credit exceeded Brisciano’s in terest, thus eliminating any credit on either side. Thereafter, partition was ordered.
The general rule with regard to credits for rents is that the tenant-in-common who has exclusive possession of real property and uses it for his own benefit, but does not receive rents or profits therefrom, is not liable or accountable to a co-tenant out of possession unless such possession is held adversely or as a result of ouster or the equivalent. However, if the cotenant in possession seeks contribution for amounts expended in improvement or preservation of property, including payments for mortgages, insurance, and taxes, that claim may be offset by the reasonable rental value of the property. Adkins v. Adkins, 595 So. 2d 1032, 1033-1034 (Fla. 1st DCA 1992), citing, Barrow v. Barrow, 527 So. 2d 1373 (Fla.1988). In the instant case, since Mr. Brisciano sought contribution for mortgage payments, taxes, and insurance paid on the marital residence, the trial court did not err in offsetting these sums by the reasonable rental value of the property.
Accordingly, the final order of partition is affirmed.
ERVIN, BOOTH and WEBSTER, JJ., concur.
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Thomas v. Thomas, 712 So. 2d 822 (Fla. 2d DCA 1998)…behalf of both owners. In that case, the nonresident is not entitled to rent except as an offset against the resident owner’s claim for a contribution to property expenses. See Barrow v. Barrow, 527 So. 2d 1373, 1377 (Fla.1988); Brisciano v. Byard, 615 So. 2d 213 (Fla. 1st DCA 1993). Notwithstanding the foregoing, when an owner’s possession of the property is an aspect of court-ordered support, the nonresident may not claim 'rent, even though the resident owner has been granted the exclusive right to occupy…
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Carlton E. Pearce, Jr. v. Pearce, 626 So. 2d 294 (Fla. 5th DCA 1993)…t he should have been compensated for [*295] one-half of the tax and mortgage payments he made for the former wife’s joint interest in their real properties, after they separated. Cf. Barrow v. Barrow, 527 So. 2d 1373 (Fla.1988); Brisciano v. Byard, 615 So. 2d 213 (Fla. 1st DCA 1993); Adkins v. Adkins, 595 So. 2d 1032 (Fla. 1st DCA 1992). The parties in this case were living apart for some twenty-two months prior to entry of the final decree. During that time, Carlton paid mortgage payments on the marital res…
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Goins v. Goins, 762 So. 2d 1049 (Fla. 5th DCA 2000)…n of real property and who uses it for her own benefit without receiving any rents or profits therefrom, is not liable or accountable to a co-tenant out of possession unless such possession is adverse to or as a result of ouster. Brisciano v. Byard, 615 So. 2d 213 (Fla. 1st DCA 1993); Fitzgerald v. Fitzgerald, 558 So. 2d 122 (Fla. 1st DCA 1990). Here, the judgment did not give the former wife exclusive possession. In such cases, the jointly owned property is deemed occupied on behalf of both owners, and the n…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Barrow v. Barrow, 527 So. 2d 1373 (Fla. 1988)
- Adkins v. Adkins, 595 So. 2d 1032 (Fla. 1st DCA 1992)