Family Law: Occupancy Rights

Occupancy Rights and Title

In law if you own a property then your rights as owner include the right to occupy, that is, to live in your property. The law provides that the right to live in property is given first and foremost to an owner. (Instead of talking about 'owning' property the term having 'title' to the property is used by lawyers.)  Title and occupancy rights are linked. 

But what if a couple own a house equally? They each have title to the property, so who has occupancy rights in that case, both or neither? The answer is both, they each have occupancy rights.  In that case if you are married or have entered a civil partnership, your spouse cannot force you to leave the matrimonial home without a court order. 

What happens if one party does not have title?

The terms 'entitled spouse' and 'non-entitled spouse' are used in these circumstances. In a marriage or civil partnership where only one spouse has title to a property, the spouse with title is called an 'entitled spouse' and has automatic occupancy rights. By contrast the spouse without title is called the 'non-entitled' spouse. 

The non-entitled spouse is protected by the availability of occupancy rights. If the party with title refuses to allow the other party into the home, the non-entitled spouse should consult a solicitor as quickly as possible. The solicitor will raise court proceedings asking the court to regulate the non-entitled spouse's right to occupy the matrimonial home. The court can declare, enforce, regulate and protect the occupancy rights of the non-entitled spouse as well as restrict the occupancy rights of the entitled spouse.

The non-entitled spouse can be granted the right to remain in occupation if he/she already occupies the property, and, the right to enter and occupy if he/she is not in occupation. Further, the non-entitled spouse is entitled to occupy with any child of the family concerned.

Once in occupancy, the non-entitled spouse can take steps to secure his / her future occupancy e.g. to pay the rent, rates or mortgage and instruct or carry out repairs etc; these are called 'subsidiary and consequential rights'.

Where parties are not married, e.g. cohabitants, and only one party owns the property, the cohabitant without title has no automatic right to occupy the property. In these cases the court can grant the party without title a right to live in the property for a period of up to six months. The court can extend this period on request.

What if neither party has Title?

This would occur where the property is rented. Here the entitled spouse is the party who is the tenant. The non-entitled spouse is the non-tenant.  If the entitled spouse, the tenant, abandons possession of the property and if possession is necessary to continue the tenancy, the non-entitled spouse, the non-tenant, is entitled to continue the tenancy by taking possession.  

Do occupancy rights expire?

Yes, occupancy rights to a matrimonial home expire if they are not exercised for two years or more or on divorce or dissolution of a civil partnership.  

Conclusion

Occupancy rights provide protection to parties who may formerly have been thrown out of their homes. However, as ever, these are tricky and sensitive matters. So while the above outline may provide some relief, we would recommend you consult the Drummond Miller Family Law Team if difficulties concerning occupancy rights arise. Drummond Miller deal with such disputes regularly. If you need advice about occupancy rights or any aspect of family law please contact us. There are family law solicitors at our offices in Edinburgh, Musselburgh, Dalkeith and Bathgate.