Key Takeaway

Each tenant in common of real property may use, benefit and possess the entire property subject only to the equal rights of cotenants. Thus, a cotenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease. 


Carr v. Deking, 765 P.2d 40 (1988)

Carr v. Deking

765 P.2d 40 (1988)

(Tenancy in Common)


Joel Carr and his father, George Carr, now deceased, owned a parcel of land in Lincoln County as tenants in common. From 1974 through 1986 the Carrs leased the land to Richard Deking pursuant to a year-to-year oral agreement receiving one-third of the annual crop as rent. The Carrs paid for one-third of the fertilizer. In 1986, Joel Carr informed Mr. Deking he wanted cash rent beginning with the 1987 crop year. Mr. Deking was not receptive to this proposal.

In February 1987 Joel Carr wrote a letter to Mr. Deking to determine if he wanted to continue leasing the property. Mr. Deking did not respond. Instead he discussed the lease with George Carr. On February 18 Joel Carr went to his father's home and found Mr. Deking there discussing a possible 5-year lease. Joel Carr again indicated he wanted cash rent. Later that day, unbeknownst to Joel Carr, Mr. Deking and George Carr executed a written 10-year crop-share lease at the office of Mr. Deking's attorney. Under this lease, Mr. Deking agreed to pay all fertilizer costs. Joel Carr neither consented to nor ratified this lease and never authorized George Carr to act on his behalf.

In April Joel Carr gave notice to Mr. Deking that his tenancy would terminate at the end of the 1987 crop year. Mr. Deking responded that he would retain possession pursuant to the written lease with George Carr. In July Joel Carr commenced this action to declare that no valid lease existed, Mr. Deking had no right to farm the land and he should be required to vacate the land at the end of the 1987 crop year.


Whether a tenant in common who refuses to join in a lease executed by the other tenant in common is entitled to eject the lessee.


First, Joel Carr contends the court erred in refusing to eject Mr. Deking from the property on any of three bases: (1) He did not authorize or ratify the lease and, therefore, is not bound by it; (2) Mr. Deking is a stranger to the common title, and (3) the rights of Mr. Deking as lessee are subordinate to those of a nonjoining tenant in common. He argues public policy should prevent prospective lessees from going behind the back of one tenant in common to obtain a more favorable lease from the other.

On the other hand, it is Mr. Deking's position that George Carr could lawfully enter into a lease with respect to his own undivided one-half interest in the property, and Joel Carr was not entitled to bring an ejectment action to which George Carr did not agree. He asserts the proper remedy is partition, not ejectment.

Each tenant in common of real property may use, benefit and possess the entire property subject only to the equal rights of cotenants. Thus, a cotenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease. The nonjoining cotenant is not bound by this lease of the common property to third persons. The lessee "steps into the shoes" of the leasing cotenant and becomes a tenant in common with the other owners for the duration of the lease. A nonjoining tenant may not demand exclusive possession as against the lessee, but may only demand to be let into copossession. 

Applying these principles, we find Joel Carr is not entitled to eject Mr. Deking from the property. The proper remedy is partition and until that occurs, Mr. Deking is entitled to farm the land under the lease. There is no indication that this property is not amenable to physical partition. Joel Carr clearly has the right to that remedy. Joel Carr cites no authority and none has been found which would render the lease ineffective as between the estate of George Carr and Mr. Deking. The cases upon which Joel Carr relies are distinguishable.

Second, Joel Carr contends the court erred in striking from his affidavit his lay opinions which purport to raise an issue of fact concerning George Carr's mental capacity to enter into the lease. He requests this court to be lenient in considering this affidavit in opposition to summary judgment. He also argues the court abused its discretion in denying a continuance to produce additional evidence on this issue. We find no error.

Lay opinion on the issue of mental responsibility of another is permitted so long as it is based on facts personally observed by the witness. However, "unsupported conclusional statements cannot be considered by a court in a motion for summary judgment."

Joel Carr's affidavit states George Carr's mental capacity had failed substantially over the last several years. It also states that on the day the lease was signed George Carr appeared confused as to what to do with the property because he was first considering a 5-year lease and later that same day signed a 10-year lease. Neither of these statements tend to prove or disprove the capacity to contract. George Carr may have changed his mind during the course of the day -- something he was entitled to do with respect to his undivided one-half interest. We cannot consider Joel Carr's conclusion that his father did not have the capacity to enter into the lease because it is unsupported by the assertions in the affidavit. We note the new lease shifted fertilizer costs to Mr. Deking from the shared cost arrangement in prior years. We find no error.

Neither did the court abuse its discretion in refusing to grant a continuance. A continuance may be granted to a party who knows of the existence of a material witness and shows good reason why the affidavit of that witness cannot be obtained in time for summary judgment proceedings. Joel Carr did not satisfy this criterion.

Finally, Joel Carr moved to amend his complaint and for reconsideration or clarification of his relationship with Mr. Deking pending partition. The court denied the motions to amend and to reconsider, but clarified the parties' relationship by ruling that Joel Carr was entitled to one-sixth of the crop, one-sixth of the government conservation payment and was obligated to reimburse Mr. Deking for one-sixth of the fertilizer costs. Joel Carr claims this was error. His challenge is directed to the requirement he pay fertilizer costs when the lease with George Carr required that Mr. Deking pay all such costs. He also argues the court improperly exceeded his request by determining the crop and conservation payment share.

In view of our holding that the trial court properly denied Joel Carr's effort to eject Mr. Deking, Joel Carr is entitled to the benefit of the Deking-George Carr lease, at his election, until a partition of the property occurs. However, Joel Carr cannot claim the benefits contained in the Deking-George Carr lease without also accepting the other terms of that lease. Consequently, we remand to the trial court to determine Joel Carr's election choice. If he elects to be governed until partition by the prior oral lease with Mr. Deking, then the trial court's ruling is affirmed. If Joel Carr elects to be governed until partition by the Deking-George Carr lease, then the judgment shall be so modified by the trial court.


Joel Carr is not entitled to eject Mr. Deking from the property.

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