(specially concurring).
I concur in the result reached by the majority on each of the issues raised by appellant on appeal; I disagree, however, with the discussion concerning appellant’s claim of constructive ouster.
Appellant asserts that the trial court improperly rejected his requested finding of fact that he was constructively ousted or evicted from the family home and that he should be compensated for a portion of the reasonable monthly rental value of the residence from the time of the parties separation to the entry of the final judgment disposing of the community debts and assets. The trial court adopted a finding determining that appellant “chose to move out of the family home, and he then maintained another home where he also had his office for his business.” Appellant contends that the court’s finding is not supported by substantial evidence. Although the record contains conflicting testimony on this issue the trial court’s finding is supported by substantial evidence.
An “ouster” is a wrongful dispossession or exclusion of a party from real property and involves proof of intent of one party to exclude another. Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir.1974); Mastbaum v. Mastbaum, 126 N.J.Eq. 366, 9 A.2d 51 (1939). A party seeking to establish the fact of ouster must prove that he has unequivocally been deprived of the right to the common and equal possession and enjoyment of the property. See Young v. Young, 37 Md.App. 211, 376 A.2d 1151 (1977). Generally, ouster may not be presumed solely from the fact that one party is in possession of the property. Barrow v. Barrow, 527 So.2d 1373 (Fla.1988). Similarly, a cotenant in possession of property is not liable to another cotenant for a portion of the fair rental value of the occupied property, except where he has agreed to pay, deprived the other of possession, or has used the property so as to constructively exclude the other cotenant from its use or enjoyment. See Chance v. Kitchell, 99 N.M. 443, 659 P.2d 895 (1983); Keeler v. McNeir, 184 Okl. 244, 86 P.2d 1004 (1939); Roberts v. Roberts, 584 P.2d 378 (Utah 1978); In re Marriage of Maxfield, 47 Wash.App. 699, 737 P.2d 671 (1987). “Exclusive use,” which means no more than one cotenant using the entire property, requires either an act of exclusion or a use of such nature that it necessarily prevents another cotenant from exercising his rights in the property. Young v. Young. Generally there can be no holding adversely or ouster by one cotenant unless the fact of such exclusive holding is communicated or made known to the other. Barrow v. Barrow.
Where the parties have separated and one spouse retains exclusive possession of the community residence pending entry of the final decree of divorce, such occupancy, if tantamount to an ouster or constructive eviction, may render the spouse who retains possession of the property liable to the other for a portion of the reasonable rental value. Hertz v. Hertz, 99 N.M. 320, 657 P.2d 1169 (1983). If the evidence, however, supports a finding that one party elected to move out of the community residence, absent conduct and an intent on the part of the remaining party to exclude the other from the property, denial of a claim of ouster or constructive eviction is proper.
The term “constructive eviction” most commonly arises in the context of a landlord and tenant relationship. See Santrizos v. Public Drug Co., 143 Minn. 222, 173 N.W. 563 (1919). For the acts of one party to constitute a constructive eviction of another, there must be an injurious interference with one party’s possession, substantial deprivation of the party’s beneficial use of the premises, and such impairment of the party’s right to reasonable use of the premises that he is compelled to vacate the property. See Ben Har Holding Corp. v. Fox, 147 Misc. 300, 263 N.Y.S. 695 (1933). Where one party is forced to leave the home because of violent conduct of the other, such fact may give rise to a finding of ouster. See Young v. Young. In situations where the property is not adaptable to double occupancy, occupancy of the property by one party where rancor or hostility exists to the degree that one or the other must vacate the property may give rise to a basis for finding a constructive ouster. Newman v. Chase, 70 N.J. 254, 359 A.2d 474 (1976). See Cummings v. Anderson, 94 Wash.2d 135, 614 P.2d 1283 (1980); see also Annotation, Accountability of Cotenants for Rents and Profits or Use and Occupation, 51 A.L.R.2d 388, at § 15 (1957).
No presumption of constructive ouster or eviction arises from the mere fact that one spouse has left the marital residence and the other remains in possession. Proof of occupancy of realty by one party, without more, does not render a tenant liable to a cotenant for use of the property because each has a right to occupy the premises. In re Estate of Lopez, 106 N.M. 157, 740 P.2d 707 (Ct.App.1987). See also NMSA 1978, § 40-3-3 (Repl.1986); Oliver v. Oliver, 710 S.W.2d 942 (Mo.App.1986). Each case must be decided under the facts of that particular case.
The finding of the trial court determining that appellant was not ousted from the •community residence is supported by substantial evidence; thus denial of appellant’s requested finding of fact seeking an award of the rental value of the community residence during the separation was proper. See Holloway v. New Mexico Office Furniture, 99 N.M. 525, 660 P.2d 615 (Ct.App.1983).