Few law students remember judicial accounting law from their property law course, and it’s hard to blame them. This little-discussed body of law is formulaic and rarely addressed by appellate courts. Judicial accounting law, however, should not be ignored. The law, which allocates equity to cotenants (or, more colloquially, co-owners) of residential property upon partition of that property, guides homeowners’ behavior and shifts wealth between them. This Note argues that state legislatures should reform judicial accounting law to better protect those cotenants living in their homes from partitions brought by cotenants living elsewhere.
The problem with judicial accounting law lies in its rigid approach to distributing property among cotenants. Current judicial accounting law considers only six monetary factors when allocating equity to cotenants, including housing payments and the fair market value of rent (credited to cotenants who are not living in the home). As this Note explains, this inflexible process ignores the unique nature of residential property, improperly pushing occupying cotenants—those who live on the property—away from their home. To prevent harm to occupying cotenants, judicial accounting law should incorporate some additional non-monetary factors to enable judges to shift more equity to the occupying cotenant in cases where (1) that cotenant has an established connection to their home and community, and (2) the non-occupying cotenant has induced the occupying cotenant to rely on stable housing. This modest change in law promotes utility while remaining grounded in analogous areas of law, such as the marital distribution of property.
How Judicial Accounting Law Fails Occupying Cotenants,
Nw. J. L. & Soc. Pol'y.