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Other Legal Issues Involving Assets
What is the law on occupation rent when one person in a short common-law relationship leaves the home and the other stays in the home and pays for all the mortgage and expenses? The person who left uses the old residence to do his laundry, do business and generally hangs around for 3 or 4 days a week. When the home is sole are the proceeds divided 50/50 or is there a recovery of expenses? (by C of Vancouver, BC) To be frank, I'm not really certain that I understand your question. I'll tell you generally about occupation rent and what usually happens with the proceeds of sale of a home. Occupation rent may be payable when one party "ousts" the other from the family home, by doing things like changing the locks, obtaining an order for the exclusive possession of the home or making it unbearable for the other party to continue living under the same roof. Where a party has been ousted from the family home, the party staying in the family home may have to pay "occupation rent" to the ousted party on the basis that the ousted party has been deprived of the benefit of living in a home to which he or she has a legal interest and in which he or she has a right to live. When a home is sold, the proceeds are applied first to the mortgage, second to the real estate fees and third to any outstanding property taxes or utility fees. What's left over is the equity. There is a presumption for married couples that the equity should be split equally, although sometimes one person gets more than the other to achieve fairness. There is no such presumption for common-law couples. In a common-law relationship, there is only a presumption that the proceeds of sale should be shared equally when both parties are on the title of the home. If only one person owns the home, the other party has to make a claim against the home by way of the law of trusts, which can be complicated. It is certainly the case, whether married or common-law, issues like who paid the mortgage after separation and so forth can be taken into account in dividing the proceeds of sale. That's really a circumstantial question, and will depend wholly on the particular circumstances of each couple. There is no hard and fast rule on this issue. Click here to go to the top of the page. I have lived with my exgirlfriend for about 2 years, and we have now seperated. We both payed rent for this month. I am chosing to keep the apartment. After this month is over, if any of her things are still there can i get rid of them, or is there a law against this? Also, she wants me to hold on to her couches untill she has room for them, and I've told her to move them out as quick as possible. What can I do next month that wont burn me later if she goes to court or if I so something stupid? (by J of Chilliwack, BC) There really aren't any hard and fast rules about what you have to do with your ex's personal property. In general, if you want to avoid getting burned by the courts, you've got to bend over backwards to appear reasonable. If I were in your shoes, if it was really important that she get her stuff out of your house, I would tell her, in writing, that while you don't want to inconvenience her too much, you would really like to use the space her stuff is occupying for something else. I'd give her at least a month to get her stuff out, and suggest that she might want to make arrangements to have the larger items, like the couches, stored somewhere else. I'd ask her to call you to confirm that she's made alternate arrangements by the middle of next month. If she doesn't call you to let you know when she's coming by your place to pick up her stuff, by the middle of next month, I'd write her another letter telling her that she must make arrangements to get her stuff out of your apartment, you'll be putting out on the curb at the end of that month. It's all about being a decent guy. Since she's paid the rent this month, she has every right to keep her stuff at your place. Once the month ends, you've got no responsibility to expect free storage from you. You should, however, cut her some slack and be decent about it. Give her some time to get her shit together and make arrangements for her couches. As long as you're reasonable about it, the court will cut you some slack. Click here to go to the top of the page. I recently found out my husband has been cheating, he says that we will live in the same house as roomates until out daughter graduates from high school. I would like to know how to go about getting him out of the house. He has become very verbally abusive, and is telling out daughter things that he shouldn't be. What do I have to do to get him out of the house? (by N of Attica, NY, USA) If you lived in British Columbia, I'd tell you that you could get an order giving you the sole right to occupy the family home and an order restraining your husband from entering the home under ss. 38 or 124 of the Family Relations Act. To get that order, you would have to make an application to the court. This means starting litigation, of course, but if you need a court order that's the only way to get one. If you lived in British Columbia, I'd also tell you that if your situation becomes truly intolerable and he crosses the line from verbal abuse to threats or physcial abuse, you should call the police immediately. They will usually arrest and remove your husband from the home, and he would be released, the following day, on his promise to refrain from contacting you or entering the family home until the criminal charges were dealt with. Please, speak to an attorney in your neighbourhood for a proper answer. You don't have to hire the attorney, but his or her views on your situation will at least give you an idea of what options you have and what the consequences of those options might be. Click here to go to the top of the page. My husband and have been separated for over 2 years. We have no formal separation agreement. We agreed the family house was mine and he would carry the mortgage until I could get one; I have this in writing. He is refusing to show me the mortgage statements or property assessment. I have been paying everything since we split up. Do I need to get a lawyer to make him hand these papers over or can I go in front of judge on my own? (by C of Robson, BC) Things are probably a bit more complicated than you think. On the bright side, if you have a written document that you'll get the house, you are well ahead of the game. I am very concerned that your husband hasn't given you the information you need about the mortgage. I'm not so worried about the property assessments, but you need to know about the state of the mortgage. To get that information, first try the bank. If you own the house together, you should be able to get the bank to give you the statements for the mortgage. If that doesn't work, then you'll have to go to court. (You don't have to hire a lawyer to start an action, nor do you have to have a lawyer to ask for an order that your husband produce his documents to you, but having one always helps. What you want is fairly complicated.) The reason why I'm concerned about the complexity of this is that you may not actually want the house after all. You're sort of caught between wanting to enforce the written document as a contract, but you may be doing it blindly. In general, no separation agreement is good if there's been no proper financial disclosure. On top of that, you may want the agreement to include more than the house. I strongly suggest that you speak with a lawyer about your situation as soon as possible. Click here to go to the top of the page. My wife and I purchased a house while we were still together as a revenue property. If I stay in the revenue house as my main residence does she have acess to the family home? (by A of Vancouver, BC) Your wife can have free access to whatever properties the two of you own together. If your rental property is in both your names, she has access to it. If you changed the locks, for example, she could break in and not be charged with a criminal offence, since you can't "break into" property that you own. If you want to restrict her access, you can apply for a court order giving you exclusive occupancy of the rental property. Otherwise you really can't stop her. Click here to go to the top of the page. Am I obligated to sell a home with two teenaged boys still going to school and intentions on university if my wife files for divorce? I am perfectly happy in the house and the boys need a stable environment. Am I forced to sell it at this juncture? (by L of Coquitlam, BC) Unless there is an order requiring you to sell the house, you don't have to sell the house. The start of divorce proceedings doesn't mean a thing. The question is: what will you agree to and what will the court order? From what you've said, there's a very good reason why the house shouldn't be sold right now. The court would in all likelihood let you keep the house until the children are out of school; or, if you can afford it, the court would also let you buy your wife's interest out of the house. Relax about the house until it becomes an issue! Click here to go to the top of the page. Site Navigation Go back to the Q&A Index. Section Menu
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