I have been kicked out – am I entitled to rent from my former partner?

Exclusion, compensation, and occupation rent

When relationships involving cohabitation break down, it is very common for one party to leave the cohabited property, whether willingly or because they have no other choice. In such circumstances, the party that has left may be entitled to be paid rent by the remaining party to compensate for their continued occupation of the formerly-cohabited property. This rent is referred to as 'occupation rent'.

When is occupation rent payable?

Occupation rent arises where one beneficiary who occupies property under a trust of land excludes another beneficiary from that property.

In a family law context, trusts of land generally arise when people purchase property together. For example, if Alan and Betty both pay 50% of the purchase price of a property, then they are normally both beneficiaries of the trust of land concerning that property. Trusts of land can also arise when people live together and contribute towards the household, potentially regardless of who purchased the property. For example, if Betty buys a property outright, she will be the beneficiary of the trust of land. However, if Alan moves in with Betty and begins buying shopping for the household or paying the household bills, then Alan may also become a beneficiary of the trust of land because of his contributions.

In either of the above scenarios, if Alan were to exclude Betty from the property, then Betty could potentially be entitled to claim occupation rent from Alan - and vice versa.

Prior to 1996, issues relating to occupation rent would be dealt with by the courts in equity. Since then, however, the vast majority of occupation rent issues are resolved by the courts considering sections 12 – 15 of the Trusts of Land and Appointment of Trustees Act 1996 ('TLATA 1996'). However, TLATA 1996 is not exhaustive, and caselaw dating from before and after its enactment may also need to be considered.

What counts as 'excluded'?

Whether a party has been “excluded” is not solely reliant on whether that party has been forcibly barred from residing at a given property. In circumstances where a relationship has broken down, the party that leaves the cohabited property will generally be regarded as excluded.

The Court reviews all of the circumstances of a case when deciding on exclusion and, as outlined in the recent case of Ali v Khatib & Ors [2022] EWCA Civ 481, puts the emphasis on the behaviour of the party that remains in the property. Returning to our example above, if Betty voluntarily decided to leave the property to travel the world, she may not be successful in attempting to claim occupation rent from Alan, if Alan’s position was that she would be welcome back and would be able to enjoy her right to occupy at any time. There has to be something more to justify the payment of occupation rent, beyond one party residing at the property and the other not.

Having said that, it is not always easy to establish whether someone has left a property voluntarily. This is particularly so where only one party wishes to end the relationship, as was initially the case in Re Pavlou [1993] 1 WLR 1046.  In Re Pavlou, the leaving party was eventually served with a divorce petition, which the Court accepted as definitive evidence that they were not welcome to return to the property.  But this will not always be the case and the case is obviously of no assistance where the parties are not married.

In Murphy v Gooch [2007] EWCA Civ 603, the Court found that, when Ms Murphy left the property that she had formerly cohabited with Mr Gooch, she was constructively excluded from the property in the same way that a wife leaving a joint home on the breakdown of the marriage would be, despite the fact that she and Mr Gooch were unmarried.

Whether a party has been excluded is highly fact-specific.

Does the Court consider any other factors, such as children?

In considering  eligibility for occupation rent, the Court will also consider the reasons how a trust may have arisen and the parties’ intentions in creating the trust. This can be a complex procedure, but can be especially relevant where the parties have children. In Stack v Dowden [2007] UKHL 17, the parties had been cohabiting for 18 years and had four children together when they purchased a property in joint names. Nine years later, their relationship broke down, Mr Stack moved out and sought compensation for having to find alternative accommodation. The children remained with Ms Dowden at the property. The Court ruled that there was no continuing obligation for Ms Dowden to pay Mr Stack occupation rent because Ms Dowden was using the property to continue to provide a home for the four children of the couple. The Court determined that this had been the intention of the couple when they purchased the property in the first place.

How much occupation rent can I claim?

Occupation rent can be calculated by reference to expert evidence about the open market rental value of the property. However, it is more common for occupation rent to be calculated so as to offset the interest element of any mortgage on the property, as in Murphy v Gooch. Calculating occupation rent as being equal to mortgage interest paid by the party that remains at the property is not just convenient to the parties, but also avoids the kind of expansive and protracted inquiries that accompany instructing experts.

Conclusion

Occupation rent is a subject worth bearing in mind if you are involved in the breakdown of a relationship. Although it is not always applicable and requires the consideration of some complex factors, occupation rent can offer a means of accounting for the benefits of being able to stay in a formerly-cohabited property following relationship breakdown.

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