Occupational Rent: A Guide For Separating Homeowners

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 12th December 2023

Property ownership can be complicated and challenging, especially when there is a separation between co-owners involved.

occupational-rent-a-guide-for-separating-homeowners

If you are in the position where you co-own a property with somebody else and are parting ways, or considering doing so, read on to make sure you understand how occupational rent works and how it might affect you moving forward.

In this guide, we discuss:

  • What occupational rent entails 

  • How it might impact individuals jointly owning a property

  • How Lawhive can help  

What is occupational rent?

Occupational rent is a financial arrangement that is put in place when co-owners of a property, like a home, no longer live together because of separation or other circumstances.

It is basically a compensation for the right to continue occupying the property during the transition of splitting up or until a final decision is made about the property's future.

Put simply, occupational rent makes sure that there is fair use of jointly owned property when the owner's relationship breaks down.

How is constructive exclusion defined?

Constructive exclusion is when one co-owner purposely restricts the other person's access to the jointly owned property.

Unlike physical exclusion, which explicitly stops entry into the property, constructive exclusion is more subtle and can involve actions or circumstances that make property use impractical or uncomfortable.

Constructive exclusion can take many different forms, such as changing the locks, denying access to essential amenities, or creating an inhospitable living environment.

How is occupational rent calculated?

Occupational rent calculation involves assessing a similar property's current market rental value in the same area. The calculation works out how much a person would pay to use the property while it's occupied by one co-owner.

Once the fair rental value is worked out, it is divided proportionally between the co-owners based on their shares. This calculation makes sure that the occupying co-owner compensates the non-occupying co-owner for using their share of the property.

Of course, calculating occupational rent does change and vary based on local laws, any relevant legal agreements or court orders that might be in place.

How to make a claim for occupational rent

Before going ahead with your claim for occupational rent, you should make sure you understand the legal basis for claiming occupational rent. This could be outlined in a cohabitation agreement, a court order, or any other relevant property laws.

It's always a good idea to talk to a family law solicitor who specialises in property matters as early on in the process as possible. They will provide you with advice that is tailored to your specific situation and help you understand the strength of your claim.

Once you have started this process, your solicitor will start negotiating with the occupying co-owner or their solicitor. It's always worth trying to reach an agreement on the amount and the terms of occupational rent, which may involve discussing things like the fair rental value and how long it should be paid for.

If negotiations don't work, you could consider mediation as a way to resolve the dispute. A neutral third party can assist both parties in reaching a mutually acceptable agreement.

If negotiation or mediation doesn't work, you may have to go to court. Your solicitor will help you with and through the process, such as filing your claim, attending hearings with you, and presenting the necessary evidence to support your case.

If the court finds occupational rent is owed, it can issue a legally binding order specifying the payment amount and terms. Compliance with this is mandatory, so the occupying co-owner has to pay this.

Unfortunately, there are cases where the occupying co-owner refuses to follow through with the court order, enforcement measures may be put in place. This could include legal actions to seize assets or garnish wages to recover the owed occupational rent.

What do the courts consider in deciding occupational rent?

When a court decides on occupational rent, lots of factors are considered to ensure a fair and equitable outcome such as:

  • Property Ownership: The court will examine who owns the property legally. If both parties are joint owners, the court will assess the percentage of ownership each party holds.

  • Financial Contributions: Contributions from each party, including purchase price, mortgage payments, and maintenance costs, will be taken into account. This includes both financial and non-financial contributions, like home improvements.

  • Occupation of the Property: The court will assess which person lives in the property. If one person has exclusive possession, they may have to pay occupational rent to the non-resident co-owner.

  • Duration of Occupation: The time one person has lived in the property may influence the court's decision. Long-term occupation without an agreement on financial contributions may favour an occupational rent claim.

  • Fair Rental Value: The court will consider the property's fair rental value. This involves assessing the market rent the property could fetch if leased to a third party.

  • Agreements or Court Orders: Any existing agreements or court orders related to property ownership or financial arrangements between the co-owners will be looked at.

  • Financial Hardship: Both parties' financial situation may be considered. If paying occupational rent would cause financial hardship for someone, the court may consider this in its decision.

  • Equitable Principles: Courts aim for fair outcomes. The goal is to find a resolution that reflects each party's contributions and rights.

The court may also consider whether both parties willingly sought legal advice and entered into any agreements. Agreements reached under duress or without proper understanding may be subject to scrutiny.

Cohabitation laws have been under the spotlight recently, and for good reason. Have a read of our article to find out more and to consider if you think the laws on cohabitation should change?

Can you be forced to pay occupational rent?

Yes, you can be forced to pay occupational rent. You might find that you legally have to pay occupational rent in some situations.

For example, if one co-owner exclusively lives in the property, excluding the other person from doing so, the non-occupying co-owner might have a legal right to claim occupational rent.

In addition to this, a court may order the payment of occupational rent based on the circumstances of the case. Parties may also enter into agreements, whether voluntarily or as directed by the court, specifying the payment of occupational rent.

During divorce or separation proceedings, the court may address the issue of occupational rent as part of the overall resolution of property matters.

If co-owners cannot agree on the use and occupation of the property, which can happen, a court might step in to help resolve the matter and work out the payment of occupational rent.

Is occupational rent taxed?

Occupational rent usually can't be deducted for tax purposes and is considered personal living expenses. It's a good idea to contact a tax professional for tailored advice based on your situation, as they can help you navigate the ins and outs of tax regulations.

Mortgage implications 

Occupational rent can impact homeowners with a mortgage and effect various factors.

Mortgage Agreement

Some mortgage contracts may have clauses addressing the situation where the property is jointly owned, and one party should be paying occupational rent. 

Communication with Lender

Some lenders may have policies or guidelines for situations of joint ownership so you should Inform your mortgage lender about any changes in the property's occupancy, which can help stop any issues arising from not telling them.

Joint Mortgage Responsibility

Even if one party is paying occupational rent, both parties may remain jointly responsible for the mortgage. Ensure that both individuals know their ongoing financial obligations and discuss how to manage them.

This should be considered if parties have a legal agreement specifying how occupational rent will be handled. Legal agreements can influence how mortgage-related matters are managed.

Refinancing Considerations

If there are major changes in the ownership or financial arrangements, it may be worth considering whether refinancing the mortgage is a viable option. This could involve adjusting the mortgage terms to reflect the new circumstances.

Given the complexity of mortgage arrangements and legal considerations, seeking professional advice is crucial. Consult with a mortgage advisor or financial planner to understand the specific implications of your situation and explore potential solutions.

Home improvements and occupational rent

Home improvements can absolutely impact occupational rent, especially when co-owners are separated or divorced.

If both parties have jointly invested in those home improvements, it may impact how occupational rent is calculated. The contributing party may seek acknowledgement or compensation for their share of the investment made and in court proceedings, the judge may consider each party's contributions, including financial contributions towards home improvements.

Parties may agree or disagree on the necessity and value of specific home improvements. Whilst you may not think it necessary at the time, clear communication and documentation of any agreements regarding improvements can really help in determining how occupational rent is addressed and valued. Maintaining records of all home improvements, including receipts and contracts will also help.

You will also need to consider how the improvements made affect the property's overall value. If the improvements enhance the property's value, it could be a factor in negotiating occupational rent terms.

As always, it is so worth considering mediation or negotiation to address the impact of home improvements on occupational rent. A neutral third party can assist in facilitating these discussions and finding a resolution without having to go to court.

Can occupational rent be backdated?

Whether occupational rent can be backdated depends on legal considerations, and each specific case.

If you have a legal agreement in place, this can significantly impact backdating occupational rent. A clear agreement stating the terms, including the start date of occupational rent, is crucial. If both parties negotiate and agree on various aspects, including occupational rent and agree to backdate the rent and document it, it can be legally binding.

In some instances, a court order may require payment of occupational rent. The order will specify the terms, including backdated payment if it applies. The court will consider presented facts during legal proceedings.

Courts may consider fair principles in determining backdating occupational rent. If there are considerations of justice and equity based on the circumstances, the court may adjust the effective date of occupational rent.

Seeking legal advice from a qualified professional will help to determine backdating. A legal expert with property and family law knowledge can provide guidance based on the specific laws applicable.

How do you avoid paying occupational rent?

To avoid paying occupational rent you can:

  • Negotiate and reach an agreement

  • Try mediation or dispute resolution

  • Sell or transfer ownership

  • Regularly review your agreements

  • Explore other housing arrangements

If you seek legal advice, a solicitor will assess your personal situation and suggest the best way forward for you.

Get occupational rent support with Lawhive

For specialist help on property law and housing rights during separation, get a free case assessment today for personalised advice and a free quote relevant to your situation. 

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