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  • Other people living on property without permission

    Situation:
    Jointly own a property, common law relationship. Other owner living in home. Incidentally, another person has moved into the home without my permission.

    We are going to settlement conference in a few weeks. If they refuse to seriously consider payment of occupational rent (for the other person living in the home), can I send the other occupant a Notice to Vacate the premises?

  • #2
    No, you can't. The other party has as much rights (potentially more due to current exclusive posession) to use the property as they see fit, including having someone else live with them.

    Why would occupational rent suddenly become an interest now that someone else is living there, is it your ex-partner's new partner and you have an issue with them moving on?

    Comment


    • #3
      Essentially the other party has exclusive possession; however, the other party cannot be granted that under the FLA - we were never married.

      Who is living in the home is insignificant. That person is living rent free and enjoying my equity in a property while I pay rent.

      It really is a negotiating item during settlement. If the non paying occupant refuses to pay rent, why can I not give notice to vacate? Nothing within the law (as far as I can tell) can prevent me from moving back in.

      Comment


      • #4
        Originally posted by bringeron View Post
        Essentially the other party has exclusive possession; however, the other party cannot be granted that under the FLA - we were never married.

        Who is living in the home is insignificant. That person is living rent free and enjoying my equity in a property while I pay rent.

        It really is a negotiating item during settlement. If the non paying occupant refuses to pay rent, why can I not give notice to vacate? Nothing within the law (as far as I can tell) can prevent me from moving back in.
        How long have you been out of the house? Has there been an order to exclusive possession?

        You are likely entitled to occupational rent from the ex. But their guest is just that, a guest. Even if you were living back in the matrimonial home, you could not prevent them from staying there. How many times do you see people inviting their family to stay there during the divorce proceedings.

        Comment


        • #5
          The other party cannot be awarded exclusive possession; we were never married.

          Sure, I can request occupational rent; however, that will be offset by the occupier paying all the expenses related to the home.

          The occupier cannot get my name off the mortgage without a release from spousal support, which I refuse to give until such time as I am paid in full for a payment of other assets.

          I am not trying to be unreasonable here. I have no issue with another person living in the home; however, it seems rather unreasonable that that person can live there for free while I have to pau? Either pay rent move out, while move back in until the house is sold?


          Sent from my GT-S7560M using Tapatalk

          Comment


          • #6
            You could impute an income to the other spouse, based upon fair market rent. If they choose to give that to their new partner without collecting any funds that is their choice, but one which should not impact you.

            Comment


            • #7
              okay, but they can't stop me from moving back can they? Its either pay rent or move back in to offset my expenses.

              Sent from my GT-S7560M using Tapatalk

              Comment


              • #8
                Originally posted by bringeron View Post
                okay, but they can't stop me from moving back can they? Its either pay rent or move back in to offset my expenses.

                Sent from my GT-S7560M using Tapatalk
                No entirely true...if you are paying rent at an apartment or something, you have moved out of that house. The other spouse has a right to privacy. You are essentially in a landlord type of arrangement. It can be argued by the other party, that you moved out and have established yourself elsewhere, especially if you have been paying rent somewhere else for a couple months. The other party may not technically be able to get exclusive possession (I don't really know), but they certainly can get a restraining order.

                Do you have a lawyer? If you have been out of the house for any length of time, I suggest you speak to them before thinking you can just move back in.

                Comment


                • #9
                  Are there children involved, living at the residence?

                  Comment


                  • #10
                    Rights as a Cohabiting or Common Law Couple

                    In determining whether to make an order for exclusive possession, the court must consider a) the best interest of the children affected, b) any existing orders respecting family property or support orders, c) the financial position of both spouses, d) any written agreement between the parties, e) the availability of other suitable and affordable accommodation, and f) whether there has been any violence committed by a spouse against either the spouse or the children. Once again, Part II of the FLA only applies to married spouses, and accordingly, unmarried cohabitating spouses do not have access to the same possessory rights.
                    Fear not; unmarried cohabitating spouses have a few different options.

                    First, cohabitating spouses who have lived together for a period of not less than 3 years or who are in a relationship of some permanence if they are the natural or adoptive parents of a child may apply for the matrimonial home as part of spousal support under s. 29 of the FLA. According to s. 34(1)(d) of the FLA, the court may make an interim or final order respecting the matrimonial home.

                    Second, although it doesn’t lead to exclusive possession, cohabitating spouses may get a constructive trust over the matrimonial home, which gives each spouse a joint equitable interest in the home and therefore joint possessory rights in the home as well (equal right to live in the home).

                    Third, on application, the court may make an interim or final restraining order against a person who is a spouse/former spouse of the applicant or a person who is cohabitating or has cohabitated with the applicant for ANY period of time (s. 46(2) FLA). An interim or final restraining order may be made if the applicant has reasonable grounds to fear his or her own safety or the safety of any child in his or her custody (s. 46(1) FLA).

                    Finally, in certain scenarios, if a cohabitant is charged criminally, bail conditions may exclude the offender from the matrimonial home.
                    In effect, the common law has swooped in to remedy many of the injustices that result from separate regimes for married and unmarried cohabitating spouses.

                    Comment


                    • #11
                      A restraining order? Surely there have got to be grounds for that.

                      Yes, moved out. The other party wants to buy me out but can't. A motion has been filed for partition. In the interim, I cannot fathom how I can be excluded from my own property. I don't WANT to go back. That being said I cannot afford rent while my equity sits there. All I asking for is a reprieve from expenses while they enjoy the property exclusively. It can be a long time before the property is sold.

                      I am only considering this as a negotiating tool. Pay rent and I will leave things alone. Refuse to pau rent and I have no other financial option but toove back in.

                      Sent from my GT-S7560M using Tapatalk

                      Comment


                      • #12
                        Thanks for that article Blink!

                        Yes the children live in the home. That being said, in the initial application for the courts the other party never requested spousal support (that party was the primary income). Nor would a restraining order likely be ordered.

                        This has certainly given me some pointers. It is all about the negotiating.

                        It certainly gives me some strong tools to work with.

                        Sent from my GT-S7560M using Tapatalk

                        Comment


                        • #13
                          You don't have to pay rent for your own house. If the other party chooses to have someone else live there they have every right to, even if they don't pay rent. You can always stop paying the bills for the house, but that means your equity will only be split from the time you stopped paying the bills. If you continue to pay for the bills of the house, the equity is split 50/50.

                          A restraining order can certainly be granted if you try to move back in after being established elsewhere. As was stated, you are essentially a landlord now and have grounds to enter the house for inspection, but need to give notice, the same as your landlord would have to do if they wished to inspect your property.

                          Comment

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