Institute for Energy Law Oil & Gas E-Report
(by Anthony DaDamo)
“My possession of said land has been, and is, actual, hostile, visible, notorious, exclusive, continuous and peaceable.” One of several cotenants to land in northern West Virginia attested to this in an affidavit in 1903. While it is clear that the affiant was attempting to adversely possess the property, can one cotenant, who has an equal right to the possession of commonly held property along with all other cotenants, adversely possess the interests of his cotenants? West Virginia courts recognize the doctrine of ouster, which allows a cotenant in possession to acquire all interest of his or her cotenants in property, similar to adverse possession. As with its sister concept, adverse possession, recorded evidence of ouster is difficult to identify. In situations satisfying the elements for ouster, identifying and applying the principle is an effective way to clear clouds on title.
West Virginia courts recognize that the ouster of a cotenant may occur when all elements of adverse possession are met and there are objective facts to show specific intent to oust the cotenant. Ouster requires a tenant in common to occupy common property openly, notoriously and exclusively as the sole owner, while keeping up improvements, paying the real estate taxes and receiving the rents and profits. Proof of these elements shows an intention to ignore the rights of the ouster’s cotenants and such acts amount to an expulsion of non-possessing cotenants. The ouster’s possession will be regarded as adverse to his cotenants from the time the cotenants are shown to have knowledge of such acts and claims. The ousting cotenant must take actual possession of the property and claim title to the entire property for a period that satisfies the statute of limitations for adverse possession (10 years in West Virginia). Obtaining an interest in property by deed is not enough to affect ouster; the ousting cotenant must take actual possession of the land.
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