Beck v. Beck 125 N.C.App. 402, 481 S.E.2d 317 (1997) is a recent case that gives further guidance as to what acts constitute ouster of a tenant in common. The Court points out that N.C. Gen.Stat. § 1-40 allows for possession of land through the doctrine of adverse possession as follows:

No action for the recovery or possession of real property, or the issues and profits thereof, shall be maintained when the person in possession thereof, or defendant in the action, or those under whom he claims, has possessed the property under known and visible lines and boundaries adversely to all other persons for 20 years; and such possession so held gives a title in fee to the possessor, in such property, against all persons not under disability.

The court sets forth the well established requirements of the elements of adverse possession between tenants in common, "possession "is not considered adverse ... unless [the adverse claimant] ousts his cotenant 'by some clear, positive, and unequivocal act equivalent to an open denial of his [cotenant's] right.' " McCann v. Travis, 63 N.C.App. 447, 451, 305 S.E.2d 197, 200 (1983) (quoting Young v. Young, 43 N.C.App. 419, 427, 259 S.E.2d 348, 352 (1979))", Beck v. Beck, 125 N.C.App. 402, 481 S.E.2d 317, (1997) . This is known as an actual ouster. Actual ouster is often very difficult to prove factually.

In Beck the parties owned the property as tenants by the entirety until their 1972 divorce converted it into a tenancy in common. In 1973 Ms. Beck filed a partition petition an Mr. Beck filed a response denying she had any interest in the property. In 1978, petitioner's case was dismissed without prejudice by the trial court, pursuant to G.S. § 1A-1, Rule 41(b), due to Ms. Beck’s failure to prosecute the action. She took no further action in this matter until March 1995 when she filed a new petition for partition. Mr. Beck again responded denying title and claiming adverse possession.

The Court set forth the trial court findings as follows, " The trial court found, and the record reflects, that petitioner knew in 1973 that respondent claimed the subject property as his own. Furthermore, respondent's responsive pleadings to petitioner's 1973 partition action unequivocally asserted his claim of total and exclusive ownership of the subject property. Petitioner also admitted, in her deposition testimony, that respondent had been in sole and undisturbed possession of the subject property since 1973, had collected rents and profits from the property without objection by petitioner, and had paid all taxes due upon the land.

Petitioner's deposition also indicates that she knew of, and did not object to, respondent's sale of timber cut from the land, respondent's use of the land for the grazing of cattle and for farming, respondent's claim of ownership to the land during a boundary dispute with another party (not petitioner), and respondent's rental of mobile homes on the property. Finally, petitioner admitted in her deposition that respondent had ‘treated said real property as his own,’ ‘open and notoriously to his own use,’ ‘to the exclusion of the Petitioner,’ by ‘clear, positive, and unequivocal acts of ownership.’"

The Court held that Mr. Beck’s response, denying title, in the 1973 partition proceeding constituted an actual ouster and his subsequent exclusive treatment of the property fulfilled the requirements for adverse possession as admitted by Ms. Beck. "Based on these facts, we conclude that petitioner was ‘actual[ly] ousted’ from the

property at issue on the date of respondent's filing of the answer in the first partition proceeding. See Willis[v. Mann], 96 N.C.App. at 454, 386 S.E.2d at 71. In Willis, on facts substantially similar to the ones at hand, this Court held ‘that the institution of this [Torrens] action unequivocally indicates that plaintiffs had actual notice that defendants were claiming the property to the exclusion of plaintiffs.... We hold that [such] evidence ... demonstrates an actual ouster of plaintiffs.’ Id. In our view, respondent's 26 July 1973 answer to petitioner's prior partition claim amounted to an open, unequivocal denial of petitioner's rights to any part of the subject property. Thus, for § 1-40 purposes, the advent of respondent's adverse possession was 26 July 1973, the date of respondent's actual ouster of petitioner." Beck v. Beck 125 N.C.App. 402, 481 S.E.2d 317 (1997).

A significant issue was raised regarding whether the continuity of the possession was interrupted during the pendancy of the 1973 proceeding. Although the court held (we believe correctly ) that it was not interrupted, the courts reasoning appears to be confusing when the Court, citing Thomas v. Garvin, quotes as follows "if an actual ouster be made by one tenant in common with his co-tenant, there is no longer a common possession, and the remedy is not by petition for partition, but by ejectment to recover possession of the individual moiety." Thomas v. Garvan, 15 N.C. 223, 224 (1833).

Beck v. Beck, 125 N.C.App. 402, 481 S.E.2d 317, (N.C.App. 1997). If the Court had stopped the quote after the word "possession" there would not be an inference that an election of remedies or procedure was at issue as has been suggested by some commentators.

This case may not be of significant help to the title examiner trying to clear a title defect based upon adverse possession of a co-tenant since one rarely finds such clear evidence of ouster as a denial of title in a special proceeding file. It is probably simply encouraging that the appellate courts seem to be more willing to affirm a finding of adverse possession upon a set of clear facts.

1031 "Like Kind" rules unchanged by ‘97 Tax Bill

The proposed amendments to the definition of like kind property in Section 1031 tax deferred exchanges proposed to be included in the recently passed tax revisions have reportedly been dropped from the final version. Concerns about a narrowing of the scope of the types of real estate qualifying for deferred gain under Section 1031 are apparently allayed for the present.--- CLB