At common laws a claim for occupational rent can be brought where one owner is ousted from the property by another owner Re Johnston estate 2017 BCSC 272 where the court stated:
At common law, a claim for occupation rent may be brought by a co-tenant who has been ousted from the property. An ouster brings to an end to one of the tenant’s right to share the benefit of occupation: it exposes the remaining tenant to liability to indemnity the ousted tenant for the loss of that benefit. In the absence of ouster there is generally no such liability. It cannot be said that a tenant in possession has been unjustly enriched by sole occupation of premises so long as each tenant has an undivided right to the full use of the property. As long as there is no impediment to the exercise of that right by either tenant , no claim for indemnity arises from the abandonment of the property by one of them. ( LMR v JFR 2010 BCSC 363)
17 “It is clear from the case of L.M.R. v. J.F.R., 2010 BCSC 363, that a claim for occupation rent can be brought at common law by a co-tenant who has been ousted from a property, because the ouster brings to an end one tenant’s right to share in the benefit of occupation. There is generally no liability to pay occupation rent where there is no ouster.”
In the case of Kostiuk, Re, 2002 BCCA 410, the BC Court of Appeal addressed the issue of conduct that constitutes ouster and the burden of proving ouster. The court noted that:
43 The fact that a co-owner had sole possession does not prove ouster because on co-owner is entitled to be in possession of the entirety, but if possession is demanded and refused, on the grounds that the co-owner in possession claims the whole property as his own, “such possession is adverse and ouster enough” (Doe v. Prosser (1774) 1 Cowp. 217 [at 218], 98 E.R. 1052 [at 1053]). The co-owner alleging ouster must prove that the other co-owner is in possession with the intention of ousting her.
Re Kostiuk followed Dennis v McDonald affirmed (1981) 2 WLR 275 ( C.A) which adopted the definition of “ousted” as stated in M v H ( 1994) 17 ).R. (3d) at page 133 ” the act of wrongfully putting one out of rightful possession of his or her property”.
Dennis v MacDonald ( 1981) 1 WLR 810 , affirmed (1981) 2 WLR 275 (CA) which held in part”:
–“Only in cases where the tenants in common not in occupation were in a position to enjoy their right to occupy but chose not to do voluntarily , and were not excluded by any relevant factor, would the tenant in common in occupation be entitled to do free of liability to pay an occupation rent”.
Re Kostiuk stated at paragraph 43- ” The fact that a co owner had sole possession does not prove ouster because one co-owner si entitled to be in possession of the entirety, but if possession is demanded and refused , on the grounds that the co-owner in possession claims the whole property as his own, ” such possession is adverse and ouster enough”. The co-owner alleging ouster must prove that the other co-owner is in possession with the intention of ousting her ( Allison v smith) ( 1877) 17 NBR 199 ( C.A)
There is one exception to that rule: occupation rent may be set off against a claim made by a tenant in occupation for expenses associated with the occupation . It would be inequitable to permit a tenant in possession to enjoy undivided possession while seeking a division of the expenses associated with that possession. LMR v JFR 2010 BCSC 363