Cohabiting tenants and court regulation of occupancy rights
While awaiting decisions about the long-term tenancy arrangements following the breakdown of a relationship, there may be occasions when the couple remain in the home together. In this case it may be necessary for one partner to restrict or regulate the occupancy rights of the other partner.
Regulation of occupancy rights
Either the tenant, one of the joint tenants or a non-entitled partner (where occupancy rights have been granted by the court) can apply for orders restricting [1] and/or regulating [2] the occupancy rights of their partner.
An order granted by the court restricting occupancy rights may seek to prevent one of the partners from inviting certain people into the home, for example a new partner. A court order regulating how partners utilise their occupancy rights could even result in them using parts of the accommodation at different times.
In considering whether to grant these orders the court will have regard to the conduct of the partners, needs of any children etc. [3] The legislation makes it clear that any such orders granted must not have the effect of excluding one of the partners from the home. [4] If the applicant partner wishes to do that they will need to apply for an exclusion order. For more information, please see the page on exclusion orders.
Either spouse can also apply to the court for an order enforcing her/his occupancy rights if s/he has been forced to leave the property.
Joint tenants
Where there are joint tenants, the court can regulate how they continue to live in the property together or grant an order that removes one of them from the tenancy. A joint tenant cannot be forced to leave the tenancy unless the other joint tenant has obtained a court order. If one of the joint tenants has been forced to leave without a court order and wants to return, s/he is entitled to do this but may want to have the police present. Alternatively, s/he can get an order from the court to enforce her/his right to occupy. [5] The court may make an order if it thinks it is just and reasonable to do so taking into account such factors as:
the conduct of the partners
their respective needs and financial resources
the needs of any children
the extent to which the home is used in connection with any trade or business
whether the joint tenant has offered her/his jointly entitled partner suitable alternative accommodation.
Sole tenant
Where a sole tenant wishes to remain in the home without her/his partner, the tenant can give her/his partner reasonable notice to leave. The tenant's partner has no right to remain in the home once permission has been withdrawn if s/he has not been granted occupancy rights by the courts. If s/he refuses to leave the tenant should apply to the court for an order of ejection or ask the police to assist in her/his removal (although the police may be unwilling to become involved without a court order).
Where there is a dispute and the tenant's partner wishes to remain in the home s/he will have to apply to the courts for her/his occupancy rights to be granted. The tenant can oppose the granting of occupancy rights and the court may not grant the order, for example, on the ground that the applicant is violent. If occupancy rights have been granted, the court can regulate the living arrangements whilst both parties remain in the property.
If a non-entitled partner has been put out or kept out of the home and wants to return to it s/he can go to court for an order to enforce her/his occupancy rights to allow her/him to go back in. The court may make an order if it thinks it is just and reasonable to do so taking into account such factors as:
the conduct of the partners
their respective needs and financial resources
the needs of any children
the extent to which the home is used in connection with any trade or business
whether the sole tenant has offered her/his partner suitable alternative accommodation
Last updated: 6 August 2020