Attorney
Florida Case Law Insights by Melissa Boatman Linebaugh, J.D. – July 24, 2025 Edition
In a short but telling appellate decision, a Florida court reversed a trial court’s award of over $100,000 in back rent in a partition case between siblings, reaffirming a principle that’s been settled law since at least 1988: a co-tenant in possession of jointly owned property does not owe rent to the other co-tenant absent ouster.
The case involved a brother and sister who inherited their mother’s home through a revocable trust. The sister lived on the property for an extended period after their mother’s passing, while the brother sued for partition and back rent. Shockingly, the trial court awarded him over $100,000 in rental value — despite there being no allegation, let alone proof, of ouster.
The appellate court reversed the rent award, citing longstanding precedent. The opinion carried a tone of disbelief — as if to ask, “How did this happen in 2025?” The court let the partition and sale of the property stand but wiped out the back rent entirely.
For real estate and probate litigators, the rule is clear: exclusive possession by one co-owner does not trigger a duty to pay rent to the other unless there has been an actual ouster — that is, conduct equivalent to wrongful exclusion.
Takeaway: In partition and co-ownership cases, rent claims are dead on arrival without proof of ouster. Trial courts may get it wrong, but the appellate record is consistent — voluntary possession is not wrongful possession.
* * * * * * * * * *
THIS BLOG IS INTENDED FOR GENERAL INFORMATION PURPOSES ONLY. IT DOES NOT CONSTITUTE LEGAL ADVICE. THE READER SHOULD CONSULT WITH KNOWLEDGEABLE LEGAL COUNSEL TO DETERMINE HOW APPLICABLE LAWS APPLY TO SPECIFIC FACTS AND SITUATIONS. BLOG POSTS ARE BASED ON THE MOST CURRENT INFORMATION AT THE TIME THEY ARE WRITTEN. SINCE IT IS POSSIBLE THAT THE LAWS OR OTHER CIRCUMSTANCES MAY HAVE CHANGED SINCE PUBLICATION, PLEASE CALL US TO DISCUSS ANY ACTION YOU MAY BE CONSIDERING AS A RESULT OF READING THIS BLOG.