This Article undertakes two related, but separate, analyses of the "default" rules governing rental liability between co-owners of real property when cotenants have no agreement respecting this matter. A large majority of states take one approach to this problem, while a small minority of states take a completely opposite approach.
Part One of this Article compares and analyzes 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 of the systems. Part Two of this Article then undertakes an independent analysis of the designs of the two systems, testing their compliance with the premises of general default rule theory. This testing necessitates examination of both the commonalities and tensions between the specific, property law foundations of the cotenancy rental liability rules and the more general, contract law foundations of default" rule theory. Based on the results of this testing, this Article proposes a modified version of the minority default rule system which recognizes these commonalities while respecting the tensions. Further, a real-life story of a troubled cotenancy, presented in segments throughout this Article, focuses the diverse issues addressed by this Article.
