STRUGGLING WITH QUICKSAND - THE INS AND OUTS OF COTENANT POSSESSION VALUE LIABILITY AND A CALL FOR DEFAULT RULE REFORM

This Article undertakes two related, but separate, analyses of the ''d efault'' rules governing rental liability between co-owners of real pr operty when cotenants have no agreement respecting this matter. A larg e majority of states take one approach to this problem, while a small minority of states take a completely opposite apposite approach. Part One of this Article compares and analyzer, the basic designs of these two default rule systems relative to how they are actually applied by the judiciary. This analysis reveals a need for redesign cf the system s. Part Two of this Article then undertakes an independent analysis of the designs of the two systems, testing their compliance with the pre mises of general default rule theory. This testing necessitates examin ation of both the commonalities and tensions between the specific, pro perty law foundations of the cotenancy rental liability rules and the more general, contract law foundations of default rule theory. Based o n the results of this testing, this Article proposes a modified versio n of the minority default rule system which recognizes these commonali ties while respecting the tensions. Further, a real-life story of a tr oubled cotenancy, presented in segments throughout this Article, focus es the diverse issues addressed by this Article.