Occupational Rent: Can I charge rent to my ex?
25/08/2022
4 min read
Can the departing party charge the remaining party rent on their home?
If your co-owned property was bought as a home for you both, then you are both entitled to possession. As a beneficial owner, you get a share of any sale proceeds, or rental income and have the right to occupy the property.
If one of the couple is excluded from the property, then the person remaining in the property may become liable for paying the other party occupation rent, for their occupation of the departing party's share. The excluded party can seek the rent from the party still in residence.
How is occupational rent worked out?
Usually occupational rent is worked out by determining what share of the property the excluded party is entitled to (their beneficial interest) and calculating that proportion of the market rent.
Case law suggests that if the excluded party left voluntarily and stopped making mortgage payments, they would not win an occupational rent award.
How much is occupational rent?
This depends on the market rent. To get a rough idea, look at the rent charged on similar properties in the same area. If you're entitled to half the house, then the rent would be charged at 50% of the market rent.
For example: The average market rent for houses in your area, with the same number of bedrooms and a similar sized garden, is £1,200 per calendar month. Your beneficial ownership is 50% of your property.
£1,200 x 50% = £600
This is the amount you would be owed each month from the occupying partner.
What happens to the mortgage?
In most cases, the remaining party will be paying the full mortgage as they are still living in the home. They can make a claim against the excluded party for their share of the mortgage payments. In this instance, the occupational rent and mortgage reimbursement claims more-or-less cancel one another out.
It is unclear at present whether the remaining party can claim for capital or interest payments on the mortgage only, or claim for both.
What about home improvements?
If the remaining party has to carry out improvements, they may also be entitled to claim for the lower of the excluded party's share of:
- the cost of work, or,
- the resulting increase in the property's value.
Does it apply if our kids are still living in the house too?
No. In the Stack Vs Dowden case in 2005, occupational rent was not granted because the property had been bought as a family home. The occupying party was caring for the couple's four children in the family home, so was not liable to pay the excluded party rent.
Can you be forced to pay occupational rent?
Yes, if the excluded party is awarded occupational rent by the court then this is legally enforceable.
Frequently Asked Questions
After a break-up, you may decide to continue living together as house mates. If the property is yours and your ex partner does not have possession rights, you may be able to charge your ex rent, as a lodger sharing your home.
Similarly if you own multiple properties, you could move out of the one you had been sharing and charge your ex partner rent to continue living there.
Whether you have the right to charge them rent will depend on what rights they have over the property. If you own the property together, they may be liable for paying you rent if you've moved out. If you own the property in your sole name and they do not have possession rights, you may be able to charge them rent as a tenant.
This is a very complicated aspect of family law and depends on many factors, including whether you are married or civil partners and whether you have children together.
If you are in dispute over the ownership or rights over the property, book a consultation with a solicitor:
If you are or were cohabiting, and not married or civil partners, read more on Unmarried Couple Property Rights with Property Division.
The article above explains how occupational rent works with possession rights, when one party has left the home.
Often during a break-up, one partner moves out and the other remains in the property. The remaining partner generally ends up paying the full mortgage, as the excluded partner is probably having to pay rent elsewhere.
In this case, while the excluded party may seek occupational rent from the remaining party, the remaining party can claim against the excluded party for the mortgage repayments - you can't avoid paying occupational rent, but it may be balanced out by the mortgage.
However, in most cases the mortgage is lower that the market rent, so it wont balance out completely.
If you think you should be exempt from occupational rent altogether (i.e. you're living in the family home with the children, under 18), seek legal advice. You may be able to avoid paying occupational rent at all and could still claim reimbursement from the excluded partner if they have not paid their share of the mortgage payments.
If you are in dispute over the ownership or rights over the property, book a consultation with a solicitor:
