charge the co-tenant in possession for the rental value of her use and occupation of the premises. In determining there had been an ouster, the court considered the following facts significant: 1. The house in question was a single family house not susceptible of joint occupancy, and was fully occupied by the family of the co-tenant in possession. 2. The co-tenant in possession had refused requests for access to the property by the co-tenant out of possession. Neither of the above considerations applies in this case. The house in question, while a single family house, is susceptible of joint occupancy as plaintiff is a single person and the house is built to accommodate a family. Moreover, there is no showing here that defendant has requested, or would want to request, access to the property.
Lohmann is the most recent opinion fully discussing the New Jersey rules on determining ouster. The history of the ouster doctrine indicates that the New Jersey courts expand somewhat on the English common law definition of the term. By the nineteenth century, the New Jersey courts had already defined ouster as either an actual exclusion (the original meaning of ouster) or a constructive exclusion by a taking and keeping of possession by the co-tenant in possession of premises not capable of joint occupation. Lohmann v. Lohmann, supra at 48-49, 141 A.2d at 91, citing Edsall v. Merrill, 37 N.J.Eq. 114 (Ch.Ct. 1883); Davidson v. Thompson, supra.
Actual exclusion would appear to include both physical exclusion (not present in the case at hand) and occupation of the whole estate (deemed "exclusive possession" in later cases) by the tenant in possession claiming it as his own. Lohmann v. Lohmann, supra at 48-49, 141 A.2d at 91, citing Izard v. Bodine, 11 N.J.Eq. 403 (Ch.Ct. 1857). But see Lohmann v. Lohmann, supra at 68-69, 141 A.2d at 103-04 (Haneman, J. concurring and dissenting). However, such occupation is not an ouster unless first there is claim for access by one of the co-tenants out of possession that is refused by the tenant in possession. Izard v. Bodine, supra. In Newman v. Chase, supra, such a claim had been made. In Tolen v. Tolen, 2 N.J.Misc. 894, 126 A. 211, 96 N.J. Eq. 496 (Ch.Ct. 1924), as in the present case, no such claim was made. Tolen noted that the co-tenant in that case could have made such a claim, but failed to do so.
Exclusion would apparently include only claims that were openly adverse to the concept of co-tenancy. Baird v. Moore, supra. The court in Lohmann v. Lohmann, supra at 49, 141 A.2d at 91, further explicated the Izard v. Bodine, supra, standard for ouster as "possession attended by such circumstances as to evince a claim of exclusive right and a denial of the right of the other tenant to participate in the profits." See Mastbaum v. Mastbaum, 126 N.J.Eq. 366, 9 A.2d 51 (Ch.Ct. 1939); Maxwell v. Eckert, 109 A. 730 (N.J.Ch.Ct. 1920); Edsall v. Merrill, supra. In the case at hand, there are no profits involved as this is solely a domestic residence, and plaintiff first made the claim that he was entitled to the entire premises only as an alternative argument in the present case. Such a factual basis is insufficient to support a showing of an actual ouster.
As to constructive ouster, the mere fact that defendant does not wish to live with plaintiff on the premises is of no import. What counts is that she could physically live on the premises. For instance, the court in Neubeck v. Neubeck, 94 N.J.Eq. 167, 119 A. 26 (Ct.E.&A. 1922) found no ouster where a wife left her husband and he continued to inhabit their previous marital abode. The husband was only required to reimburse the wife for the rent taken in from the boarder the husband took on after the wife left. It can hardly be argued, therefore, that mere animosity between the parties renders the premises incapable of supporting joint occupancy. Thus, in the present case there can be no claim of constructive ouster based on the supposition that the premises are not capable of joint occupancy, as in fact they are.
In Baird v. Moore, supra at 167, 141 A.2d at 329-30, the court found no ouster as, similarly to the present case, the co-tenant out of possession had left voluntarily and was legally entitled to resume possession at any time. To demonstrate ouster by a co-tenant in possession, the co-tenant out of possession must make a showing clearer and more decisive than would be required were he attempting to show ouster on the part of an outsider. Ryerson v. Morris & E.R. Co., 53 F. Supp. 713 (D.N.J. 1944). Thus, the facts in evidence do not support defendant's burden of demonstrating ouster in the case at hand.
USE AND OCCUPATION
The court in Baird discussed the modern tendency in certain jurisdictions to allow a tenant out of possession to recover for use and occupation as well as commercial rents and profits, even if there be no ouster. Baird decided, in light of its discussion of the cases, neither to allow nor disallow accounting for use and occupation as a general matter, but instead to weigh the possibility of awarding such sums on equitable grounds on a case by case basis. Newman v. Chase, supra at 266-67, 359 A.2d at 480-81, characterized Baird as standing for the proposition that, as a general rule, absent ouster the tenant out of possession is not entitled to an accounting for use and occupation. In Baird, the court decided that the defendant was not entitled to the value of plaintiff's use and occupation because plaintiff had paid for all the costs of maintenance and repair, including insurance, mortgage, and tax payments, and had cared for the aged mother of plaintiff and defendant's decedent. In the case at hand all of these elements weigh in plaintiff's favor as against awarding defendant the value of plaintiff's use and occupation, aside from the fact that there was no caring for an aged mother on the property.
Weh v. Weh, 63 N.J.Super. 238, 164 A.2d 508 (Ch.Div. 1960) used the Baird weighing approach and found that the co-tenant out of possession had no right to the rental value of the premises based on use and occupation. In that case, it was also found that the co-tenant out of possession, the former husband, owed a duty to support the co-tenant in possession, his former wife. These considerations do not come into play in the present case. Based on the foregoing, defendant is not entitled to an accounting for plaintiff's use and occupation of the premises in question.
In reference to contribution, plaintiff has submitted evidence as to his mortgage payments to date ($16,096.10), the downpayment ($22,000), closing costs ($4,265.65), homeowner's insurance ($706.68), and water and sewerage bills ($109.13). The taxes for the property are escrowed to be paid with the mortgage. The unpaid principal balance on the mortgage is currently $87,544.73.
New Jersey courts normally allow co-tenants in possession a contribution from their fellow co-tenants for mortgage payments, taxes, necessary repairs, maintenance, carrying charges, and insurance. Newman v. Chase, supra, Baird v. Moore, supra; Dorf v. Tuscarora Pipe Line Co., Ltd., supra; Weh v. Weh, supra; Mastbaum v. Mastbaum, supra. In addition, when one co-tenant pays off a mortgage on the common property, or has the mortgage assigned to him, the court will treat the encumbrance either as still existing so as to enforce a contribution and subrogation or as extinguished, whichever best serves the interests of justice and the actual and just intent of the paying party. Estate of Colquhoun v. Estate of Colquhoun, 88 N.J. 558, 443 A.2d 1045 (1982); Bien v. Buckholtz, 113 N.J.Eq. 85, 166 A. 324 (Ct.E.&A. 1933); Weh v. Weh, supra; Errico v. Scopollitti, 131 N.J.Eq. 125, 24 A.2d 384 (Ch.Ct. 1942). This court will direct plaintiff to assume the mortgage in the present case, thus paralleling the situation in the above cases in a prospective manner. Because it serves the interests of justice to require plaintiff to assume the mortgage, it also serves the interests of justice to allow him to compel defendant to contribute for the additional risk which will devolve solely upon him.
There is some ancient authority for the proposition that interest is not compensable in contribution. Buckelew v. Snedeker, 27 N.J.Eq. 82 (Ch.Ct. 1876). The modern cases cited above all take interest into account implicitly or explicitly, as a compensable item. There is also some older authority for the proposition that certain insurance is not compensable. Houston v. Houston, 39 N.J.Eq. 146 (Ch.Ct. 1884). Again, the modern cases allow contribution for insurance. Finally, although the modern cases do not explicitly discuss downpayment and closing costs, they are in the nature of those costs for which compensation in contribution has been allowed, as they are items whereof the plaintiff has "'removed a common burthen from the shoulders of himself and the defendant, and . . . they are benefitted by it. '" Baird v. Moore, supra at 163, 141 A.2d at 327 citing Freeman Cotenancy and Partition § 322 at 377 (1874). See Restatement of Restitution § 105 (1937). Moreover, there is one older case that allows a co-tenant in a partition proceeding a lien on another co-tenant's proportionate share of the property for purchase money, in that case money paid to purchase the share of the other co-tenant. Campbell v. Campbell, 11 N.J.Eq. 268 (Ch.Ct. 1856).
The final opinion of the Superior Court, Chancery Division, on remand in Newman v. Chase, Docket No. C 478-74 (N.J.Super.Ct., Ch.Div., Ocean Co., Opinion of December 10, 1976 and Order of Jan. 5, 1977), allowed the co-tenant in possession an offset in the nature of contribution for payments of interest and principal on the mortgage, homeowners insurance, taxes, fire insurance, necessary repairs and municipal utility assessments, although the decision referred in specific terms only to mortgage, tax, and insurance payments, and necessary repairs. The trial court had allowed a contribution for the sewerage bill, but not the water bill, as only the former was owed to a municipally owned utility company which could establish a lien on the property, while the latter was owed to a private utility.
It would thus appear that the vaguely denominated "necessary repairs," "maintenance," and "carrying expenses" referred to in the published opinions as compensable in contribution include at least municipal utility bills. Among older cases, Thiele v. Thiele, 57 N.J. Eq. 98, 40 A. 446 (Ch.Ct. 1898) allows contribution for water rents and the court in Drumm v. Pavlick, 141 N.J.Eq. 375, 57 A.2d 662 (Ch.Ct. 1948) explicitly mentions water rents and would apparently have granted them as an expense compensable in contribution had it reached the issue in the present case, both water and sewerage bills were paid to Trenton Water Works, a municipal utility, and would therefore appear to be compensable. It is, therefore, not necessary to reach the question as to whether the distinction made by the trial court in Newman v. Chase, supra, between municipal utilities capable of enforcing a lien against the property and private utilities is still viable under New Jersey law.
Thus, it would appear that all of plaintiff's claims for contribution are meritorious.
Defendant has submitted three checks that for $200 relates, according to her deposition testimony, to the purchase of insurance and of certain movables on the premises, which purchase was necessary to complete the closing on the real property. The second for $170, relates to items necessary for the parties' contemplated wedding. The third, for $1200, relates to a mortgage payment, taxes, and a refrigerator. With reference to these submissions, the check for $170.00 does not relate to the property in question, and defendant apparently does not press her claim to that sum. As to the remaining two checks, for $1,200.00 and $200.00, plaintiff has stipulated that he will repay the entire sum to defendant, although it is not certain that all the expenses she claims are necessarily subject to contribution. Moreover, even if they were, according to the above enunciated standards plaintiff need have reimbursed defendant only for his proportionate share of the expenditures, and not the entire sum. Plaintiff has thus "done equity" within the maxims of equity requiring that he who seeks equity must do equity. Totowa Savings and Loan Ass'n v. Crescione, 144 N.J.Super. 347, 365 A.2d 713 (App. Div. 1976); Brick Township v. Vannell, 55 N.J.Super. 583, 151 A.2d 404 (App. Div. 1959). See Baird v. Moore, supra at 173, 141 A.2d at 332-33, emphasizing the importance of doing equity in partition.
For the above reasons, this court awards summary judgment on the partition action, allowing plaintiff to retain the property and requiring him to pay defendant an appropriate amount in compensation for her share in the property. The sum due defendant, however, is subject to a pro rata offset, in the nature of an equitable contribution, for plaintiff's assumption of the mortgage and for his mortgage payments, and payments of insurance and utility bills. Such offset in plaintiff's favor is, however, to be further offset in defendant's favor in the nature of an equitable contribution for defendant's purported expenditures for movables and the first mortgage payment, as plaintiff has acknowledged he is willing to repay defendant for these items. Plaintiff is directed to make a good faith effort to reformulate the mortgage as to the property to exclude defendant from liability thereon and, if necessary, to secure an alternate surety. If plaintiff complies with the terms of this opinion and the attached order, defendant should execute a deed over of all her interest in the property to defendant in order to give plaintiff clear title to the property. See J. Story, Commentaries on Equity Jurisprudence § 652 at 688-89 (11th ed. 1873).
According to the formula of the August 10, 1984 agreement, plaintiff is entitled to the greater of 61.36% of the net value or $25,000 plus 50% of net remaining value of the property, defendant is entitled to the lesser of 38.64% of the net value or 50% of the net value less $25,000. Net value is defined as the sales price in a bona fide sale, or the fair market value less outstanding mortgages, liens, and cost of sale in a disposition of the property in other than a bona fide sale.
The parties have stipulated that the fair market value of the property in question is currently $124,666.66. The present outstanding mortgage is $87,544.73. Aside from the mortgage, there are apparently no outstanding liens and, as there will be no sale of the property, there is no cost of sale to be taken into account. The net value of the property, according to the agreement, is thus $37,121.93. As discussed above, plaintiff will keep the house as his share of the entitlement. Defendant is thus owed the lesser of 38.64% of the net value or 50% of the net value less $25,000. 38.64% of the $37,121.93 net value is $14,383.91. The net value of $37,121.93 less $25,000.00 equals $ 12,121.93, fifty percent of which is $6060.96. $6060.96 is less than $14,383.91 and, therefore, represents defendant's entitlement in the property. The relationship of $6060.96 to $37,121.93 is 16.33% which represents defendant's proportionate share in the property. Thus, in order to retain the property, plaintiff must pay to defendant her 16.33% share in the $37,121.93 net value of the property.
However, plaintiff is entitled to offset this amount with a required contribution in an amount equivalent to defendant's share of necessary expenses made by plaintiff for the property. The sum of $22,000.00 (downpayment), $4,265.65 (closing costs), $16,096.10 (mortgage payments to date), $706.68 (homeowner's insurance), and $109.13 (water and sewerage bills) equals $43,177.56, the entire sum subject to contribution. Defendant is required to repay plaintiff her proportionate share of this sum. Dorf v. Tuscarora Pipe Line Co., Ltd., supra, 16.33% of $43,177.56 equals $7050.90, which is therefore the amount defendant must repay plaintiff in contribution. This sum is greater by $989.94 than that which plaintiff owes defendant for her share of the property, and therefore defendant owes plaintiff $989.94 in total before her contribution to the property is factored in.
It is not at all inconceivable that this calculation could result in the defendant owing plaintiff money, as this was also the result reached on remand in Newman v. Chase, supra. The courts of New Jersey have held that a required contribution becomes not only a lien on the proportionate share of the co-tenant, but also a personal liability of the indebted co-tenant, payable by him even if his proportionate share does not equal the value of the contribution required of him. Lach v. Weber, 123 N.J.Eq. 303, 197 A. 417 (Ch. Ct. 1938), cited in Baird v. Moore, supra.
As discussed above, plaintiff has committed himself to reimbursing defendant for the full cost of her contributions to the joint property, not merely his proportionate share. The sum of defendant's contributions is $1,400.00 - consisting of her two checks for $200.00 and for $1,200.00 respectively. $1,400.00 will, therefore, be the amount that in the final reckoning, plaintiff must pay defendant.
The court will enter an appropriate order.
[EDITOR'S NOTE: PAGINATION IN THE HARD COPY SOURCE ENDS AT THIS POINT.]
This matter being opened to the court on motion of plaintiff for summary judgment as to the complaint and the second and third counts of the counterclaim; and the count having heard oral argument and reserved decision; and
for the reasons expressed in this court's opinion dated March 31, 1986,
It is on this 31st day of March, 1986
ORDERED that summary judgment be granted on defendant's second counterclaim, declaring the agreement of August 10, 1984 void as a contract, but treating that agreement as some indication of the parties' intent as to their proportionate shares in the property; and it is further
ORDERED that summary judgment be granted on the counts in plaintiff's complaint sounding in quiet title declaring that the parties are tenants in common, and that their proportionate shares in the property are 16.33% to defendant and 83.67% to plaintiff, and it is further
ORDERED that summary judgment be granted on the courts in plaintiffs plaintiff's complaint sounding in partition and on defendant's third counterclaim for partition declaring that plaintiff is entitled to remain on the property and will have full title thereof in himself alone, provided he give defendant the sum of $1400.00 as described above. Plaintiff is directed to attempt to reformulate the mortgage, and if he complies with the above provisions, defendant is so grant him a deed over of all her interest in the Ewing Township property; and it is further
ORDERED that counts one and four of plaintiff's counterclaim are triable by jury; and it is further
ORDERED that costs will be decided upon the final resolution of the case.