41 N.C. App. 606 | N.C. Ct. App. | 1979
The motion in this case was purportedly made under Rule 56. There is nothing in the record for us to consider except the pleadings. We shall consider the motion as if it were made under
This appeal brings to the Court the question of whether a tenant in common in possession of property by court order may make repairs to the property and charge a proportional part of the costs of the repairs to the co-tenant. This question has not been previously decided in the state. In Jenkins v. Strickland, 214 N.C. 441, 199 S.E. 612 (1938), at the time of a sale for partition of real property a co-tenant was allowed the value of the improvements she had placed on the property. In Holt v. Couch, 125 N.C. 456, 34 S.E. 703 (1899), a co-tenant was allowed credit in the division of the property for the value of improvements he had made to the property as well as money he had paid to maintain the property. In each of the cases the tenant made the claim at the time of partition and in neither case did the co-tenant have the right to exclusive possession of the property. We do not believe either is precedent for this case. James A. Webster, Jr., in his Real Estate Law in North Carolina, § 109, p. 118 (1971) says:
“If repairs become necessary to the common property and one co-tenant pays for such necessary repairs which are made to preserve the property, he is entitled to contribution from his fellow co-tenants in a court of equity. While North Carolina is not clear on the point, in most jurisdictions a co-tenant who is in possession of the common property is not entitled to compensation for expenditures made for repairs to the common property while he is in possession. In such cases the value of the possession and enjoyment of the common property is deemed to compensate the repairing co-tenant.”
On the facts of this case, we adopt the reasoning of Professor Webster. We hold that the plaintiff is not entitled to compensation for expenditures made for repairs to the common property while she was by law entitled to exclusive possession of the property. The question of what the plaintiff’s position would be upon a partition of the' property is not before us.
Affirmed.
