# Cohabitation Rights **URL:** \ **Category:** Factual Questions\ **Created:** [July 29, 2010, 5:26am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426 "2010-07-29T05:26:42Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Alice\_The\_Goon](https://avatars.discourse-cdn.com/v4/letter/a/ed8c4c/32.png) [@Alice\_The\_Goon](https://boards.straightdope.com/u/Alice_The_Goon)\ **Post date:** [August 1, 2010, 11:52pm UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/41 "2010-08-01T23:52:02Z")
Since rental laws vary from one municipality to another, there isn’t one definitive cite that I can find in my short available time right now with regards to one unknown city in Washington state, but there are several cites from different cities out there, mostly in the form of question-and-answer type forums. Here’s a news article from [Tampa Bay](http://www.sptimes.com/2004/02/17/Tampabay/Law_slanted_in_favor_.shtml). [http://www.avvo.com/legal-answers/how-can-i-legally-kick-someone-out-of-my-house–81215.html](http://www.avvo.com/legal-answers/how-can-i-legally-kick-someone-out-of-my-house--81215.html) [http://www.maybenow.com/Can-I-Kick-My-Roomate-Out-(No-lease)-q5601613](http://www.maybenow.com/Can-I-Kick-My-Roomate-Out-%28No-lease%29-q5601613) ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 2, 2010, 12:09am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/42 "2010-08-02T00:09:57Z")
> [@Alice\_The\_Goon](#): > > Since rental laws vary from one municipality to another, there isn’t one definitive cite that I can find in my short available time right now with regards to one unknown city in Washington state, but there are several cites from different cities out there, mostly in the form of question-and-answer type forums. > > Here’s a news article from [Tampa Bay](http://www.sptimes.com/2004/02/17/Tampabay/Law_slanted_in_favor_.shtml). > > [http://www.avvo.com/legal-answers/how-can-i-legally-kick-someone-out-of-my-house–81215.html](http://www.avvo.com/legal-answers/how-can-i-legally-kick-someone-out-of-my-house--81215.html) > > [MaybeNow | Error Page](http://www.maybenow.com/Can-I-Kick-My-Roomate-Out-%28No-lease%29-q5601613) well, see, i guess that’s my point. yes, rent laws differ everywhere. what doesn’t differ, though, is that (to my knowledge) no one can become a tenant when no rent is paid, or there is no agreement (or claimed agreement\*) about anything related to their staying at your place. the “maybenow” link presupposes that he pays rent the avvo link - i’m not going going to presume what this guy is talking about. he provides no analysis for his legal answer, which is in stark contrast to how lawyers normally go about their business (I have a beef to pick with AVVO, so I generally discount whatever shows up on that site, heavily, as a personal bias) the tampa bay article… well, this one is similarly scant on legal analysis. What is obvious, however, is that the police department probably has a policy of not enforcing these kinds of rights, since most of these people live in these places under informal “agreements” that can blossom very quickly into suits against the city for improper use of force (or whatever variant you care to charge them under) if the facts are one way or another. simply put, it’s not worth the cops’ time to do anything about it. this is a puff piece that, at it’s core, is designed to agitate senses rather than provide legal opinion. " Because of liability concerns, you should not:" - they’re not telling you what the law actually is, they’re telling you how to CYA. basically, none of these is what i would characterize as a proper cite that guests become tenants in your house _with nothing else other than the fact that they’re a guest_. yes, if a judge believes that there was an agreement, even though there wasn’t one in reality, then you’ll create a tenancy situation. lying about the facts of a situation - that’s not my point, though. ---
**Author:** ![Alice\_The\_Goon](https://avatars.discourse-cdn.com/v4/letter/a/ed8c4c/32.png) [@Alice\_The\_Goon](https://boards.straightdope.com/u/Alice_The_Goon)\ **Post date:** [August 2, 2010, 12:25am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/43 "2010-08-02T00:25:31Z")
I don’t know why you singled me out to cite law to you when other posters have contended the same thing, but [this](http://www.freeadvice.com/law-questions/do-i-have-a-tenant-issue--45576.htm) site, from Kelso, Washington, indicates that in that state, a person with no lease or rent payment is still considered a “licensee” and still must be legally evicted. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 2, 2010, 12:39am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/44 "2010-08-02T00:39:05Z")
> [@Alice\_The\_Goon](#): > > I don’t know why you singled me out to cite law to you when other posters have contended the same thing, but [this](http://www.freeadvice.com/law-questions/do-i-have-a-tenant-issue--45576.htm) site, from Kelso, Washington, indicates that in that state, a person with no lease or rent payment is still considered a “licensee” and still must be legally evicted. I’m not singling you out - other than the fact that you were the one who made the assertion. Let me posit you this one: When I walk into my local Target or Best Buy, I am not a tenant of the property, right? If I am anything, I am a licensee. (they’re probably an invitee in common law terms, but invitees generally have more rights than licensees) (“someone who entered and remained on the premises with permission” in the language of your link) Do you really think for one second that the cops wouldn’t haul me out of there with handcuffs and a taser if I told the assistant manager “no, I’m not leaving!” ? No. These articles you are reading are misleading you as to why they are prescribing the courses of action they’re prescribing (not without good reason, though). It’s because the cops won’t get involved with grey area “tenancies that may not be tenancies” and it’s because people will get the entirely wrong idea when you tell them “you can self-help someone out the door if they stay past their welcome” ---
**Author:** ![Alice\_The\_Goon](https://avatars.discourse-cdn.com/v4/letter/a/ed8c4c/32.png) [@Alice\_The\_Goon](https://boards.straightdope.com/u/Alice_The_Goon)\ **Post date:** [August 2, 2010, 12:57am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/45 "2010-08-02T00:57:48Z")
There comes a point in time where you are no longer considered a guest, I guess is the point that you’re missing. Being given the use of the property, after so many days, automatically means that you are living there. It does not matter if you’re on the lease, or paying rent. You have become a tenant. That period of time varies from state to state, possibly city to city? 30 days seems to be common. I’m sorry that there’s a lack of verifiable information about this online, so you can believe me or not, so be it. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 2, 2010, 1:05am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/46 "2010-08-02T01:05:33Z")
> [@Alice\_The\_Goon](#): > > There comes a point in time where you are no longer considered a guest, I guess is the point that you’re missing. Being given the use of the property, after so many days, automatically means that you are living there. It does not matter if you’re on the lease, or paying rent. You have become a tenant. That period of time varies from state to state, possibly city to city? 30 days seems to be common. I’m sorry that there’s a lack of verifiable information about this online, so you can believe me or not, so be it. yeah, i’m not going to believe it. like i said, wishing really hard that the law gave you some remedy just because “you’ve lived there long enough” isn’t enough to make it so. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [August 2, 2010, 2:04am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/47 "2010-08-02T02:04:22Z")
> [@Rumor\_Watkins](#): > > no one can become a tenant when no rent is paid, or there is no agreement (or claimed agreement\*) about anything related to their staying at your place. How, in the OP’s hypothetical, is there no agreement concerning the non-owner living in the owner’s house? It seems pretty obvious to me that if a GF were to move in with me, we’ve made an agreement that she’s living in my place. ---
**Author:** ![Spoons](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spoons/32/3141_2.png) [@Spoons](https://boards.straightdope.com/u/Spoons)\ **Post date:** [August 2, 2010, 8:30am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/48 "2010-08-02T08:30:37Z")
**Rumor** , are you moving the goalposts? Because it seems to me that you are. Let’s review what you’ve said. > [@Rumor\_Watkins](#): > > Do you have any cite for [a constructive trust in property resulting from “sweat equity”] whatsoever? Because depending on when the property is acquired, title definitely decides questions of possession of a residence, even a matrimonial one. Edit by me, to indicate what **Rumor’s** quote responded to. > [@Rumor\_Watkins](#): > > cite that courts like to imply constructive interests in a parcel of real estate as aized in matter of equity? Well, I provided you with one. But that apparently was not good enough for you; it had to be American, because Americans are special or unique or something. Here’s a hint, pal: people get married all over the world. They get divorced all over the world too. And they live together without benefit of marriage all over the world too. And I’m willing to bet that marriages solemnized in, oh, say, Albania, are recognized in Montana and Virginia, just as much as marriages in New Jersey and British Columbia are. Hey, guess what? A couple married in Canada (Oh no! That’s in a foreign country!) is recognized as married in Montana. And Virginia. And in the other 48 states. Tell me I’m wrong–I dare you. Now, assuming that a jurisdiction allows an unmarried couple to divide their assets according to some sort of statutory or common law formula, what we’re dealing with is a family law matter. You may disagree, but in my research, the courts do not. And depending on the length of time in cohabitation, and the jurisdiction, a constructive trust in property can result. I posted a cite to that. I don’t care if you don’t think it is suitable because it is foreign; the fact remains that in a common law jurisdiction, (you know, like the US, Canada, the UK, Australia, New Zealand, etc.) it can be one. I would ask you to post an American cite stating that it cannot. And no moving the goalposts. Post a cite stating that a single name on title can defeat an equitable claim of a common-law partner whose name is not on title. Caselaw only; no blogs or Wikipedia. ETA: Appellate cases only please. If I can cite the Supreme Court of Canada, which (unlike the SCOTUS) has the jurisdiction to decide these matters, you ought to be able to cite a circuit court decision, or at least a state appellate court. No trial court decisions. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [August 2, 2010, 9:24am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/49 "2010-08-02T09:24:19Z")
There’s a long line of Irish cases – another common law jurisdiction – conferring equitable interests in a property which is a shared home on the basis of cohabitation over a period, involving a common life and shared finances, such as enables one of the couple to finance the acquisition of the shared home in his (or her) sole name. The reasoning is that the party on title couldn’t have bought the house without the contribution (which may be non-monetary) of the other party. The non-owning partner has contributed to the purchase of the house, and there is no presumption of advancement. Obviously to succeed in such a claim you have to have been living together while the house was being paid for, and to build up a significant equitable interest you have to have been together for a while. These cases mostly involve a house which is owned, not rented, and the argument is not about whether the non-title partner can stay in the house, but whether they can either force sale, or demand a share of sale proceeds. Usually, by the time such a case gets to court, the parties have already separated. But I think it’s a short step, once they find the existence of an equitable interest in the house on this basis, to go on and find that the equitable owner can’t simply be turned out. Also, these cases mostly involved married couples, and the need for such litigation disappeared a good number of years ago when the powers of the courts on marriage breakdown were greatly increased. Thus there aren’t a lot of recent cases. But the principles hold good, and they are entirely equitable; they don’t depend on any statutory provisions. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 2, 2010, 12:39pm UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/50 "2010-08-02T12:39:35Z")
> [@Spoons](#): > > **Rumor** , are you moving the goalposts? Because it seems to me that you are. Let’s review what you’ve said. > > > [@Rumor\_Watkins](#): > > > > Do you have any cite for [a constructive trust in property resulting from “sweat equity”] whatsoever? Because depending on when the property is acquired, title definitely decides questions of possession of a residence, even a matrimonial one. > > Edit by me, to indicate what **Rumor’s** quote responded to. > > > [@Rumor\_Watkins](#): > > > > cite that courts like to imply constructive interests in a parcel of real estate as aized in matter of equity? > > Well, I provided you with one. But that apparently was not good enough for you; it had to be American, because Americans are special or unique or something. Here’s a hint, pal: people get married all over the world. They get divorced all over the world too. And they live together without benefit of marriage all over the world too. And I’m willing to bet that marriages solemnized in, oh, say, Albania, are recognized in Montana and Virginia, just as much as marriages in New Jersey and British Columbia are. Hey, guess what? A couple married in Canada (Oh no! That’s in a foreign country!) is recognized as married in Montana. And Virginia. And in the other 48 states. Tell me I’m wrong–I dare you. > > Now, assuming that a jurisdiction allows an unmarried couple to divide their assets according to some sort of statutory or common law formula, what we’re dealing with is a family law matter. You may disagree, but in my research, the courts do not. And depending on the length of time in cohabitation, and the jurisdiction, a constructive trust in property can result. I posted a cite to that. I don’t care if you don’t think it is suitable because it is foreign; the fact remains that in a common law jurisdiction, (you know, like the US, Canada, the UK, Australia, New Zealand, etc.) it can be one. I would ask you to post an American cite stating that it cannot. > > And no moving the goalposts. Post a cite stating that a single name on title can defeat an equitable claim of a common-law partner whose name is not on title. Caselaw only; no blogs or Wikipedia. > > ETA: Appellate cases only please. If I can cite the Supreme Court of Canada, which (unlike the SCOTUS) has the jurisdiction to decide these matters, you ought to be able to cite a circuit court decision, or at least a state appellate court. No trial court decisions. I thoroughly enjoy how you’re confusing two separate comments made in response to two separate posts. to wit: [QUOTE] The modern trend in matrimonial property laws is that as between the spouses, **the name on the title does not decide questions of possession of the matrimonial residence**. If a couple is married and living in the house, the spouse on title normally can’t just evict the other spouse as if the other spouse were a tenant or guest. Both spouses have possession rights, regardless of the legalities of title. > [@](#): > > Do you have any cite for this whatsoever? Because depending on when the property is acquired, title definitely decides questions of possession of a residence, even a matrimonial one. this is response #1. And I take umbrage with it because if title is acquired prior to marriage, it is always going to be leaving the marriage in possession of the person who owned it prior to marriage. Because it’s not marital property. (yes, if there is significant “marital” contribution to the equity of the piece of property, you will get a larger share of marital assets in compensation, or if there isn’t enough of that, you will get a lien on the property, but you will never, ever receive title, even via a constructive trust, to it if it was owned by the other spouse prior to the marriage). That was my point in response to you. If you meant “matrimonial residence” to only mean a house acquired after a marriage, then my issue with your point is moot, but i’d question your use of the term “matrimonial residence” But I enjoy how you totally mischaracterized my actual words! then there’s this one: > [@](#): > > **If someone is living in your house** , whether their name is on the lease or not, whether you’re getting any “tail” or not, **whether you hold yourself out to be married or not, you have to go to court to legally evict them**. **Different states have different lengths of time that you can stay with someone before you are considered a tenant- I’ve seen anywhere from three nights in a row** to three weeks. If you call the police to remove someone from where they have been living, the police will tell you it’s a civil matter and to have them evicted. > [@](#): > > cite that courts like to imply constructive interests in a parcel of real estate as a matter of equity? and you, for some inexplicable reason, leap to the defense of this assertion with some irrelevant claptrap about constructive trusts based upon 2 people living as husband and wife and conducting their affairs for a decade under a relationship “tantamount to spousal”. At this point, so sorry, but what we’re not dealing with is a family law matter. > [@](#): > > Post a cite stating that a single name on title can defeat an equitable claim of a common-law partner whose name is not on title. Oh, okay. I’ll do that for you. I’ll give you the relevant parts, only. (750 ILCS 5/503) (from Ch. 40, par. 503) Sec. 503. Disposition of property. (a) For purposes of this Act, “marital property” means all property acquired by either spouse subsequent to the marriage, except the following, which is known as “non‑marital property”: (6) property acquired before the marriage; (7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non‑marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and (c) Commingled marital and non‑marital property shall be treated in the following manner, unless otherwise agreed by the spouses: (2) When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non‑marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non‑marital property, unless the effort is significant and results in substantial appreciation of the non‑marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non‑marital property which received the contribution. (d) In a proceeding for dissolution of marriage or declaration of invalidity of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s non‑marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including: Illinois’ marriage/divorce laws are basically copies of NCCUSL’s model acts, so it’s as generic a version of divorce laws as you’re going to find. Now, if you’re going to have me dig out a cite for the proposition that common-law folk are treated the same as a registered-married folk… ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [August 2, 2010, 12:54pm UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/51 "2010-08-02T12:54:43Z")
If it wasn’t also clear: I am unaware of any rule (and this may now double back on the second post of Alice’s) that says a spouse, during the marriage, acquires a possessory interest in a non-marital piece of real estate. Like I said in post #38, I’m not saying there can’t be, but it just doesn’t smack me as right. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 4, 2010, 9:02am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/52 "2010-08-04T09:02:40Z")
Checking back in … (meant to come back a while ago, but that darn “real life” thing kept intervening) **Rumour Watkins** , let me clarify a bit. In post # 20, I was not addressing the situation in the OP’s question, which I agree by definition is not a marriage situation. I was responding to the comments by **Alice the Goon** and **[t-bonham@scc.net](mailto:t-bonham@scc.net)**, which I quoted in that post. I understood them to be saying that marriage is irrelevant to questions of occupancy of property, and that all that matters is whose name is on title. My response to that proposition is that it is not correct: modern family law looks at the substance of the situation between the two spouses, not the question of whose name is on title. In some cases, upon the break-up of the marriage, the courts can order a distribution of the property as between the spouses, regardless which spouse’s name is on title. I agree that question is different from the question raised by the OP, but it seems to be an side-issue that has taken on some life in this thread, so I thought I would address it. With that general comment in mind, I’ll respond to your request for a cite: > [@Rumor\_Watkins](#): > > > [@Northern\_Piper](#): > > > > The modern trend in matrimonial property laws is that as between the spouses, the name on the title does not decide questions of possession of the matrimonial residence. If a couple is married and living in the house, the spouse on title normally can’t just evict the other spouse as if the other spouse were a tenant or guest. Both spouses have possession rights, regardless of the legalities of title. > > Do you have any cite for this whatsoever? Because depending on when the property is acquired, title definitely decides questions of possession of a residence, even a matrimonial one. First, here’s a general comment on [property division in a divorce from the Legal Information Institute](http://topics.law.cornell.edu/wex/divorce), operated by the Cornell School of Law, which I hope you will accept as a sufficient authority for questions of U.S. law: > [@](#): > > Modern courts recognize two different types of property during property division proceedings - marital property and separate property. Marital property constitutes any property that the spouses acquire individually or jointly during the course of marriage. Separate property constitutes any property that one spouse purchased and possessed prior to the marriage and that did not substantially change in value during the course of the marriage because of the efforts of one or both spouses. If the separate property-owning spouse trades the property for other property or sells the property, the newly-acquired property or funds in consideration of the sale remain separate property. > > Modern division of property statutes strive for an equitable division of the marital assets. An equitable division does not necessarily involve an equal division but rather an allocation that comports with fairness and justice after a consideration of the totality of the circumstances. By dividing the assets equitably, a judge endeavors to effect the final separation of the parties and to enable both parties to start their post-marital lives with some degree of financial self-sufficiency. While various jurisdictions permit recognition of different factors, most courts at least recognize the following factors: contribution to the accumulation of marital property, the respective parties’ liabilities, whether one spouse received income-producing property while the other did not, the duration of the marriage, the age and health of the respective parties, the earning capacity and employability of the respective parties, the value of each party’s separate property, the pension and retirement rights of each party, whether one party will receive custodial and child support provisions, the respective contributions of the spouses as a homemaker and as a parent, the tax consequences of the allocations, and whether one spouse’s marital misconduct caused the divorce. Most jurisdictions also give the family court judge broad jurisdiction by providing judges with the right to consider any other just and proper factor. > > When assigning property, judges cannot transfer the separate property of one spouse to another spouse without the legislature having previously passed an enabling statute. Whether such an enabling statute exists varies between jurisdictions. So that’s the general principle, but as the LII notes, the courts cannot divide a particular piece of property as between the spouses unless the legislature of the particular jurisdiction has authorised the courts to do so. That’s why I mentioned in my post that this is an area where there can be considerable variation from jurisdiction to jurisdiction. (Since this post is getting long, I’ll continue in another post.) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 4, 2010, 9:31am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/53 "2010-08-04T09:31:06Z")
Now, turning to specific examples to illustrate it a bit further, here’s what appear to be the relevant statutory provisions from D.C., New York and California. I’ve looked at them because the OP spoke of D.C., and New York and California, being two of the largest states, tend to be very influential in social and legal trends. Based on a quick read, it looks like all three give the the courts the power to divide property between the spouses based on fairness and equity, not by whose name is on title. For example, here’s the D.C. provision: DC ST § 16-910 (I can’t link to it directly since it’s a Westlaw product, but you can get to it by going through the [LII site for D.C.)](http://www.law.cornell.edu/states/dc.html): > [@](#): > > § 16-910. Assignment and equitable distribution of property. > > Upon entry of a final decree of legal separation, annulment, or divorce, or upon the termination of a domestic partnership pursuant to § 32-702(d) and the filing of a petition for relief available under this section, in the absence of a valid antenuptial or postnuptial agreement resolving all issues related to the property of the parties, the court shall: > > (a) assign to each party his or her sole and separate property acquired prior to the marriage or domestic partnership, and his or her sole and separate property acquired during the marriage or domestic partnership by gift, bequest, devise, or descent, and any increase thereof, or property acquired in exchange therefor; and > (b) value and distribute all other property and debt accumulated during the marriage or domestic partnership that has not been addressed in a valid antenuptial or postnuptial agreement or a decree of legal separation, regardless of whether title is held individually or by the parties in a form of joint tenancy or tenancy by the entireties, in a manner that is equitable, just, and reasonable, after considering all relevant factors, including, but not limited to: > > indent the duration of the marriage or domestic partnership; > > (2) the age, health, occupation, amount, and sources of income, vocational skills, employability, assets, debts, and needs of each of the parties; > > (3) provisions for the custody of minor children; > > (4) whether the distribution is in lieu of or in addition to alimony; > > (5) each party’s obligation from a prior marriage, a prior domestic partnership, or for other children; > > (6) the opportunity of each party for future acquisition of assets and income; > > (7) each party’s contribution as a homemaker or otherwise to the family unit; > > (8) each party’s contribution to the education of the other party which enhanced the other party’s earning ability; > > (9) each party’s increase or decrease in income as a result of the marriage, the domestic partnership, or duties of homemaking and child care; > > (10) each party’s contribution to the acquisition, preservation, appreciation, dissipation, or depreciation in value of the assets which are subject to distribution, the taxability of these assets, and whether the asset was acquired or the debt incurred after separation; > > (11) the effects of taxation on the value of the assets subject to distribution; and > > (12) the circumstances which contributed to the estrangement of the parties.[/indent] (my underlining). So it certainly looks from this provision that the courts of DC can use equitable principles to over-ride the legal title, as between the two spouses. Similarly in New York: [Domestic Relations, Article 13, s. 234](http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$DOM234$$@TXDOM0234+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=13486482+&TARGET=VIEW) > [@](#): > > § 234. Title to or occupancy and possession of property. In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties. Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment. Where the title to real property is affected, a copy of such judgment, order or decree, duly certified by the clerk of the court wherein said judgement was rendered, shall be recorded in the office of the recording officer of the county in which such property is situated, as provided by section two hundred ninety-seven-b of the real property law. And in California, a community property state, the [Family Code](http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2600-2604) provides: > [@](#): > > 1. Notwithstanding Sections 2550 to 2552, inclusive, the court may divide the community estate as provided in this part. > > 2. Where economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate. So, these three statutes show that the courts can be given the authority to divide up property as between the spouses, based on principles of fairness and equity. Whose name is on title does not decide the issue, as between the spouses, which is the point I originally made in post #20. As always, none of this is intended to be legal advice, but simply to comment on a matter of public interest. Anyone who needs advice about their rights to property and divorce law should consult a lawyer who practices in their jurisdiction. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 4, 2010, 9:49am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/54 "2010-08-04T09:49:55Z")
Getting back to the OP: > [@brickbacon](#): > > Say one party owns the house in which they both live. They are just dating, but they share expenses, etc. Without a written lease or tenancy agreement, what rights would the other person (the non-owner) have if they were to break up? Would they be considered a tenant? I think people are getting hung up on the fact that one had title and the other does not. Even though there’s no written agreement, it may be that a court could infer from the shared expenses and conduct of the parties that there is an agreement of some sort, which might put the non-title person into a status of a tenant. Parties can form contracts without necessarily putting them in writing. Whether or not there is a contract would depend heavily on the facts of the particular case. And, to respond to **Rumour Watkins** ’s questions in posts # 38 and 50, I’m not suggesting that would create a constructive equitable interest in the property - I’m just suggesting that the parties may have an unwritten agreement that could amount to a tenancy, as a matter of contract law. Again, not meant as legal advice, but just speculation as to the effect of contract law. As I suggested back in post # 20, and as **Spoons** has also suggested, if the OP really wants to settle this bet, he should talk to a lawyer familiar with the residential tenancies law of D.C. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 4, 2010, 9:58am UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/55 "2010-08-04T09:58:36Z")
> [@mnemosyne](#): > > Interesting. The division of responsibility between federal and provincial seems odd to me, but I’m not a lawyer (and to be honest, I don’t really understand **Northern Piper’s** post!). Good thing I have no plans to get divorced, because I clearly don’t know what I’d be getting into 😃 Sorry I didn’t make it clear. Let me try again. There’s two aspects to marriage law: the substantive law, which deals with who can get married, and the procedural law, which deals with what ceremonies and legal formalities are needed to have a valid marriage performed. The substantive law is concerned with capacity: how old do you have to be before you can get married? are you allowed to marry close relatives? can you marry a person of the same-sex? In Canada, only the federal Parliament can pass laws governing those issues. So, for example, same-sex marriage is governed by the [Civil Marriage Act](http://laws.justice.gc.ca/en/C-31.5/FullText.html) of 2005, passed by Parliament. The Provinces cannot determine questions of substantive capacity. The provinces instead have jurisdiction over the formalities of marriage - do you need a licence? who issues licences? who is authorised to perform marriage ceremonies? are religious ceremonies recognized as valid? is there a particular form of ceremony required? what paperwork needs to be filed? Those matters are all governed by provincial law, not by federal laws. Parliament cannot legislate in those areas. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 7, 2010, 4:03pm UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/56 "2010-08-07T16:03:40Z")
> [@Rumor\_Watkins](#): > > > [@Northern\_Piper](#): > > > > The modern trend in matrimonial property laws is that as between the spouses, the name on the title does not decide questions of possession of the matrimonial residence. If a couple is married and living in the house, the spouse on title normally can’t just evict the other spouse as if the other spouse were a tenant or guest. Both spouses have possession rights, regardless of the legalities of title. > > Do you have any cite for this whatsoever? Because depending on when the property is acquired, title definitely decides questions of possession of a residence, even a matrimonial one. Depends on the jurisdiction. Under the Family Law Act in Ontario s.19(1), married spouses’ possessory rights to the matrimonial home trump the rights that come with being registered on title: [http://www.e-laws.gov.on.ca/html/statutes/english/elaws\_statutes\_90f03\_e.htm#s19s1](http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90f03_e.htm#s19s1) > [@Rumor\_Watkins](#): > > cite that courts like to imply constructive interests in a parcel of real estate as a matter of equity? > > this is GQ people, not “what i think the law ought to be” 101! What Spoons says. BTW, Spoons, have a look at the difference positions taken by McLachlin (majority) and Cory (minority) in Peter v. Beblow (SCC 1993) [http://www.canlii.org/en/ca/scc/doc/1993/1993canlii126/1993canlii126.html](http://www.canlii.org/en/ca/scc/doc/1993/1993canlii126/1993canlii126.html) . Cory seems to be trying to differentiate between family and commercial applications of constructive trust. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 7, 2010, 4:14pm UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/57 "2010-08-07T16:14:19Z")
> [@Spoons](#): > > Hey, guess what? A couple married in Canada (Oh no! That’s in a foreign country!) is recognized as married in Montana. And Virginia. And in the other 48 states. Tell me I’m wrong–I dare you. [sub][cough, cough]Same sex marriages.[/cough, cough][/sub] ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 7, 2010, 4:32pm UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/58 "2010-08-07T16:32:10Z")
> [@Spoons](#): > Post a cite stating that a single name on title can defeat an equitable claim of a common-law partner whose name is not on title. > [@Rumor\_Watkins](#): > > Oh, okay. I’ll do that for you. I’ll give you the relevant parts, only. > (750 ILCS 5/503) (from Ch. 40, par. 503) > Sec. 503. Disposition of property. > > (a) For purposes of this Act, “marital property” means all property acquired by either spouse subsequent to the marriage, except the following, which is known as “non‑marital property”: > (6) property acquired before the marriage; Rumor, your cite deals only with married spouses. It does not deal with unmarried spouses. I expect that when Spoons said common-law spouses, he was referring to unmarried spouses. Unfortunately, most folks, and a great many judges, use the term “common law” to refer to spouses who are in a marriage-like relationship but who are not married under either statute law or common-law. Since true common-law marriages are extremely rare these days, I think that you will find that when most people say common-law, they are not referring to marriage under common-law, but instead are referring to coulpes who are not married at all. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 7, 2010, 4:38pm UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/59 "2010-08-07T16:38:12Z")
> [@Swallowed\_My\_Cellphone](#): > > > [@md2000](#): > > > > In Canada, common law is AFAIK a common occurence and recognized by most provinces. The general rumour is that after 6 months cohabitation, you acquire similar rights to a married couple. > > WHOA! Keep “general rumor” out of GQ, especially when it’s way off base! > > For common law status in Ontario: You must cohabit for 3 years ,OR have a child and a marriage-like relationship. The 6 month business has no grounding at all in Canadian law. As far as three years goes for Ontario, that only applies to spousal support, there are several exceptions, and most importantly, it has nothing at all to do with property. I leave it to you to correct your statements concerning the other jurisdictions that you cited. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 7, 2010, 5:44pm UTC](https://boards.straightdope.com/t/cohabitation-rights/548426/60 "2010-08-07T17:44:17Z")
> [@Northern\_Piper](#): > > The substantive law is concerned with capacity: how old do you have to be before you can get married? . . . . In Canada, only the federal Parliament can pass laws governing those issues. Sort of. Yes, s.91 gives power over marriage and divorce to the feds, and s.92 gives power over solemnization to the provinces, but that does not mean that the provinces can not make substantive law concerning capacity. Rather, it means that the feds would trump if the the feds and the provinces come into conflict over a substantive element of a provincial law that was otherwise was dealing with the mechanics of getting married. For example, the provinces have laws (e.g. Ontario’s [Marriage Act](http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m03_e.htm)) that set out the ages at which a person can marry. On the separation and divorce side of things, there is some overlap as well. As it stands, the federal divorce act and various provincial family law acts all cover support. Sometimes it can get a bit messy when they come in conflict. [Previous page](https://boards.straightdope.com/t/cohabitation-rights/548426.md?page=2) [Next page](https://boards.straightdope.com/t/cohabitation-rights/548426.md?page=4)