Cohabitant house rights

What happens if we cohabit in a house that only one of us owns?

The court has no remedial powers to alter the legal ownership of a property. However, where ownership is of the property is disputed, what the court can do is to investigate the position and declare how it is owned and, if by more than one person, determine the share that each holds. 

In some cases, although a house may be legally registered in one person's name, this is not necessarily an accurate reflection of who actually owns the house. This is because one cohabitant might have a "beneficial" or "equitable" interest in a house, which is not recorded on the legal title.

Where ownership is disputed, the court's starting presumption will be that the legal title documents accurately reflect the underlying beneficial ownership unless there is evidence to the contrary. In this situation, the person without legal title might be able to demonstrate, by reference to an express agreement (whether written or verbal) or evidence of a common intention between them (for example in consequence of a financial contribution to the acquisition of the property or repayment of mortgage), that they have a beneficial interest. Non-financial contributions such as caring for the home or paying towards utilities and other house-keeping costs, are not sufficient to establish an ownership stake.

There are various concepts of trust principle on which a claimant might seek to rely, but perhaps the most common type in this context is the 'common intention constructive trust', in which he/she would need to prove:
•    that both cohabitants intended that the beneficial interest in the property was to be shared; and
•    that the non-legal title holder had relied on those intentions to their detriment.

Each case turns on its own facts. 

Where the court has determined that both parties do have a beneficial interest in a property, it can then determine the ownership shares, either by reference to an agreement if there is one, or evidence of a common intention or by imputing what it considers the parties to have intended by reference to the whole course of dealing between them.

Similarly, a house might be registered in joint names but one or the other might feel that this does not accurately reflect who actually owns the property in law, i.e. one of them might think that they have rights to a greater percentage than that specified on the legal title. In these cases, the court's starting point will again be to assume that the legal title accurately reflects the position (usually 50:50 where there is no accompanying declaration of a different proportionate split), but it is possible to challenge that presumption using the same trust principles referred to above.