Norfolk, VA asked in Contracts, Divorce, Family Law and Real Estate Law for Virginia

Q: Can my spouse evict my family from while I'm away on deployment?

I currently have my brother and his family residing at my home in preparation for me to leave on deployment since my spouse refuse to take care of the house. My brother is the POA for me while I'm away, however do I need to have additional documents saying I allowed them to live there. Virginia is the state. We are getting divorce when I come back on deployment.

1 Lawyer Answer
Thomas H. Roberts
Thomas H. Roberts
  • Richmond, VA
  • Licensed in Virginia

A: You should provide to him a document expressly authorizing him to stay in your house to care for the same.

Here's some old Virginia law: "One joint tenant, co-parcener, or tenant in common, although he has a right to the possession of the whole against strangers, cannot make a valid lease for more than his own part of the land; and therefore, no more can be recovered in ejectment than the part to which the lessor, who is a joint tenant, tenant in common, or parcener, is entitled." Allen v. Gibson, 25 Va. 468, 477 (1826)

Whether Ralph McCalley Chinn agreed with the actions of his three co-tenants is not relevant. His co-tenants had the right and power to enter into the agreement that they did with the Schauls. As the Court in Graham v. Pierce, 60 Va. (19 Gratt.) 28 (1869), stated:

>>>>>And although it may be best for the interests of all the tenants in common to use the common property jointly, by means of a contract of partnership between them, yet the individual owners have a right to decide that question for themselves and are not bound to enter into such contract of partnership; but may possess, use, and enjoy the property severally, accounting to their co-tenants for so much of the rents and profits as they may receive beyond their just share and proportion as aforesaid. 60 Va. at 38.

Section 8.01-31 contemplates a tenant in common being required to account "for receiving more than comes to his just share or proportion . . ." The quoted language requires an accounting where the co-tenant is physically "in possession of real property . . ." Jenkins v. Jenkins, 211 Va. 797, 798, 180 S.E.2d 516, 517 (1971), for which possession he is responsible for the reasonable rental of the same, Adkins v. Adkins, 117 Va. 445, 448-449, 85 S.E. 490, 491 (1915); Naccash v. Naccash, 212 Va. 763, 764, 188 S.E.2d 83, 84 (1972); Schroeder v. Woodward, 116 Va. 506, 529, 82 S.E. 192, 200 (1914), or where the co-tenant places someone else in possession and receives rents or profits. In this latter case, the co-tenant "shall account for rents and profits actually received . . ." Paxton v. Gamewell, 82 Va. 706, 709, 1 S.E. 92, 95 (1887) (emphasis in original), and "he is only chargeable with the profits he actually receives . . ." Eggleston v. Crump, 150 Va. 414, 420, 143 S.E. 688, 689 (1928); see also 5A M.J. Co-tenancy, § 24, p. 76, n. 9 (1988 Ed.): "[a] . . . tenant in common . . . is not chargeable with rents and profits where none have been made, provided he has employed the property in good faith with a view to make it profitable . . ."

In the instant case, none of the three co-tenants was ever in physical possession of the property or actually received any rent or profit from the same. There is nothing to account. The property was vacant from February, 1988, to May, 1989, and the occupancy by the Schauls thereafter protected, maintained, and improved the same. Indeed, had the three co-tenants not acted, they could have been liable to the fourth co-tenant for permitting waste. 2

Chinn v. Chinn, 19 Va. Cir. 430, 431-32 (Cir. Ct. 1990)

While the POA enables your brother to act on your behalf, generally a POA should not be used by the "attorney-in-fact" to act in a way that benefits him if it violates his "fiduciary" duties, with a presumption existing against him that it does violate that duty.

If the house is owned as "tenants by the entirety" or as "tenants with the right of survivorship" if you die, the law erases your name from the title, and the POA will cease to provide any power to him.


Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.