I Am The Victim Of Domestic Abuse And Am Not Able To Return To The Property Jointly Owned By Me And My Former Partner. Can I Claim Occupation Rent?
The answer is yes, according to this case.
In our previous blog, we discussed when occupation rent could be claimed under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). The starting point is that beneficial owners of a property are each entitled to occupy the property at any time (section 12 of TOLATA). The occupation rent is usually a notional rent which is based on market rental values or the cost of alternative accommodation.
It happens often that a party is excluded from accessing or residing at the jointly owned property following the breakdown of a relationship that involves domestic abuse. The common law is that one tenant in common is not entitled to rent from another tenant in common, even though the other occupies the whole property. The party who intends to make a claim for occupation rent will need to show that it would be just and equitable for him/her to be awarded payment from his/her co-owner. The Court has the discretion to depart from the above general rule after taking into consideration the following matters (section 13 of TOLATA):
- The intentions of the parties who created the trust;
- The purpose for which the land is held; and
- The circumstances and wishes of each of the beneficiaries who is entitled to occupy the land.
Background
The Claimant and the Defendant cohabited as partners with their children and jointly owned a property as tenants in common. During the 12 years of cohabitation, the Claimant left on several occasions because of the Defendant’s violence towards her. In 1974, the Claimant left the property permanently with the children, and the Defendant continued to reside at the property alone and continued to pay the mortgage.
The main issue was whether the Defendant was liable to pay occupation rent to the Claimant.
Decision
The Court held that the Claimant was constructively ousted due to the Defendant’s violence, and it would be unreasonable to expect her to exercise her rights as a tenant in common to occupy the property as she had done before the breakdown of the relationship. The Defendant should therefore pay occupation rent to the Claimant.
The appropriate method of determining the rent payable was to assess a fair rent under the Rent Act 1977 with an offset for improvements that enhanced the capital value of the property.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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