September 17, 2024 by Stephen Vincent

Ouster – Rent and Reimbursement during Divorce

Rent and reimbursement related to ouster during divorce is not settled law. Ouster, generally, is when one cotenant excludes another from the property, making the occupying tenant liable for rent to the other tenants. While Arizona courts currently recognize ouster as a defense to support a reimbursement claim in divorce, it is not yet recognized as an affirmative reimbursement request.

If one spouse lives in the marital residence while the divorce is pending, should they have to pay rent to the other spouse?

For such a seemingly simple question, it is in fact a complicated answer.

First, let’s clarify that we are discussing a situation where the home is community property, or, perhaps, more accurately and more commonly, the parties hold the property as joint tenants.

Joint Tenants

There are some technical differences between community property and joint tenancy property, but we can brush by those quickly—because, for divorce purposes, they are treated alike. See A.R.S. § 25-318(A); see also Toth v. Toth, 190 Ariz. 218, 220 (1997) (“Thus, under [A.R.S. § 25-318(A)], joint tenancy property and community property are to be treated alike only for dissolution purposes”).

We’ll start with joint tenancy here because if you understand that the law treats spouses as cotenants, then the rest of this falls into place much easier.

At present, Arizona Courts allow the non-occupying spouse to seek rent from the spouse living in the home in one specific circumstance: When the occupying spouse seeks reimbursement from the non-occupying spouse, the latter may seek rent as an offset against that reimbursement, but only if they can show “ouster.” Ferrill v. Ferrill, 514 P.3d 292, 296-297 (Ariz. App. 2022).

Ouster

Ouster is simply a way of measuring whether one has claimed “more than his due,” i.e., by ousting the other spouse from the other residence, the occupying spouse has exceeded what a cotenant can appropriately do. When ouster occurs, the occupying tenant is liable to the other tenants for rent.

Ouster is the difference between lawful occupation of the residence versus being liable to the other cotenant (s) for one’s occupation. All cotenants enjoy a right to occupancy. Any of the cotenants may occupy a property so long as they do not exclude the other cotenants. See Collier v. Welker, 19 N.C. App. 617 (1973) (explaining that the law assumes cotenants will be “true to each other. The possession of one is the possession of all.” The one in possession “is supposed to protect the right of his fellows”).

When a cotenant has claimed “more than his due,” he may be liable to pay rent to his other cotenants. Although not a divorce case, consider the facts of Morga v. Friedlander, 140 Ariz. 206 (App. 1984), as an example. In that case, the parties were partners together in the law firm. One of the attorneys was found to have ousted the other when he changed the locks, removed the other attorney’s name from the door, and told him he would not permit him to sublease his former office. In that case, the one attorney claimed “more than he was due” by effectively excluding the other attorney.

The leading case on this is Ferrill, which came out in 2023. The Court of Appeals in Ferrill recognized ouster solely as a defense to a reimbursement claim. That leads to the following question:

When a spouse has ousted another spouse from the residence, but the occupying spouse has not sought reimbursement, can ouster to be used to charge the occupying spouse rent?

The answer to that question, as of September 2024, is unclear.

Ferrill limits its “discussion” to ouster as a defense to a reimbursement claim. There have been a few other cases that touched on ouster, but the current state of the law is this—ouster is a defense to a reimbursement claim; it is not (yet) recognized as an affirmative reimbursement request.

An argument can, however, be made that it should be used as an affirmative reimbursement request. Ferrill relied heavily on out-of-state cases. At least one of those, Hertz v. Hertz, 657 P.2d 1169 ¶ 38 (N.M. 1983), appears that the ouster was raised as an affirmative reimbursement request by the wife.

Furthermore, the principles of joint tenancy upon which Ferrill was constructed clearly contemplate an affirmative request for rental reimbursement when a cotenant excludes the other cotenants.

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