What are your rights if you separate from your partner when you have been living in their property? Jenny Carter in Coodes Solicitors’ Personal Disputes team, outlines the legal situation.
Nowadays it is common for couples to cohabit without getting married or entering into a civil partnership. It is also not unusual for someone to move into a property already owned by their partner. Often, in this situation, one person will continue to own the property, while the other lives there and contributes in various ways. This raises important questions about rights after separation, especially if a property is only in one name and not both. So, what happens if things go wrong? Do you have any rights to your partner’s property?
The individual who does not own the property has few rights when it comes to remaining in the home after a break-up. Essentially, they can only stay there at the discretion of the owner. Should the owner wish their partner to move out, all that is legally required is ‘reasonable notice’, and once this notice period is over, the non-owner would be considered as trespassing.
However, a non-owning cohabitant may be able to demonstrate that they have a right to remain on one of three principles: beneficial interest, a contractual or irrevocable licence or rights by estoppel.
A beneficial interest is where an individual can seek a share in a property or the right to remain. To establish a beneficial interest, they would need to provide evidence of clear mutual intentions, by both partners, to share the property. There are two types of trust which can arise: resulting trusts and constructive trusts. There are also two types of intention which can be proven: express intentions and inferred intentions.
If you contributed towards the cost of the property, either at the time of purchase or at a later date, your solicitor may advise you to consider a resulting trust or constructive trusts. A resulting trust arises when payments towards the purchase price of a property were made at the time the property was bought. Even if the property is in your former partner’s name, as the non-owning cohabitant you could still have contributed financially towards buying the property. In this situation, it would be presumed that the legal estate will be held on a trust of land, with the contributing parties taking beneficial interests in proportion to their contribution to the purchase price.
It is important to note that a resulting trust does not arise when the contributions consist of payments of the mortgage instalments or other expenses after the purchase has been made. These payments would give rise to a constructive trust, on the condition that the sole owner expressed an intention to share the property with you
An express intention is where the sole owner and non-owning cohabitant have made a declaration of how they intended to share the property through signing a written agreement or a trust deed. For example, your former partner may have purchased the property independently and put the mortgage in their name, but signed an agreement that you were entitled to a share in the property. On the condition that there is no evidence of fraud, this would always be enforced by the Court.
An inferred intention is where the non-owning cohabitant may have made direct contributions towards the cost of acquiring the property, such as contributing towards mortgage repayments. In 1991, a key case was Lloyds Bank vs. Rosset, which ruled that anything less than direct contributions towards the mortgage would be insufficient for a common intention to be inferred.
In recent years, there have been a number of cases in which non-owning cohabitants have attempted to gain a share of the property by arguing that they had contributed significantly to the value by investing heavily in renovation work. Judges have ruled that this is not enough evidence of an inferred common intention. That is because in the context of the relationship at the time, the property would have been considered a long-term residence for the couple and any children.
In many cases, it is difficult to ascertain whether a beneficial interest has arisen, especially as there might be a disagreement between the parties as to what exactly was agreed. In this situation, it would be necessary to apply to the Court for a declaration, but in the light of courts being reluctant to grant beneficial interests in properties, it would be helpful to seek expert legal advice to clarify your position.
A contractual or irrevocable licence can occur when, for example, someone gives up their home to move into their partner’s property for the purposes of looking after their children, on the understanding that they could live there while the children were of school age.
If proven, this agreement would entitle the non-owning cohabitant to be able to stay until the occurrence of the agreed event, for example, the children leaving home, unless a situation arose which made it unreasonable for the non-owner to stay. This being said, it is difficult to establish and prove contractual or irrevocable licences.
Rights by estoppel involve a verbal agreement being reached between the separating couple. They must agree that the non-owning cohabitant will be entitled to an interest in the property, and the non-owner then relies upon this agreement to their detriment, leading to a substantial loss on their part. This could, for example, include the non-owning cohabitant giving up a job or a home to live with the sole owner.
In most cases, it is difficult to prove an estoppel claim, as there must be evidence of mutual expectations, and the conduct of the sole owner must reflect an expectation that the non-owner is entitled to a share. This could, for example, include mention being made of ‘our home’, or ‘making sure you have a roof over your head’. More often than not a Court would rule that there is no evidence of a specific claim over the property, and the non-owning cohabitant’s entitlement amounts to nothing on the breakdown of the relationship.
This is a complex legal area, and one which requires specialist legal advice. Here at Coodes we are handling a growing number of cases in which people want to claim a right to a former partner’s property. My colleague Darren Higginson wrote more about the topic and the different scenarios for unmarried cohabitating couples in his recent blog.