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Leyla Shahin-Mehrube
Leyla Shahin-Mehrube,
Category: Family Law
Satisfied Customers: 221
Experience:  Family Solicitor at WLH Solicitors
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My first questions surround the question of occupational

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My first questions surround the question of occupational rent:I understand that a relationship breakdown causing one cohabiting party to leave the home of those two people is often regarded by the courts as ‘a constructive exclusion’ from the property and a liability to pay an occupation rent therefor arises.
Mine and my former partner’s (CA) relationship broke down late January 2019. I was forced to leave the property by the start of February 2019. I have always paid my share of the mortgage which amounts £334 pcm. Across this time period he also has actively excluded me from the cottage by changing the locks on the gates to the property without providing me a key, screwing our wooden gate shut and permanently leaving keys on the inside of the locks of any doors to the cottage to which I have keys. This can be verified by my surveyor who witness this situation.Q: Would I be right to feel that I am entitled to occupation rent at a 50% proportion of the market rent.? Rental value of this property is est as £1700 pcm. 50% = £850 pcm (a total of £10,200 over the last 12 months.Q: Would I be entitled to stop paying my share of the mortgage on the cottage in recognition of this monthly amount due. If yes and I cease paying the mortgage from 1st March 2020 would 50% share of the market rent – 50% of the residential mortgage be due pcm. (ie £850-£334 = £516 pcm)Q: Would entering the cottage, ie two days per week, for the purpose of removing my possessions and making light redecoration nullify or reduce the right to claiming occupational rent?
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: I have had some of my case reviewed by a solicitor but not this so far
JA: Have you talked to a lawyer about this?
Customer: no
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no
Customer: replied 15 days ago.
Please could you also advise of the process I should follow to claim the rental. Would the rental value of the property need to be jointly valued or could I get my own valuations?
How should I notify my former partner that I will not be paying the rent in part exchange for the occupational rent and can I claim the occupational rent on a monthly basis - as I do my other tenant - or do I need to wait for court settlement?

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Hi I will try to help: The right to an occupation rent arises when one party is actually or constructively excluded from his or her property. The party excluded may seek occupation rent from the party remaining in the property. A relationship breakdown will often be regarded as a constructive exclusion. In the domestic context, the right to occupation rent will frequently be cancelled out by a claim against the excluded party for re-imbursement of mortgage interest payments.

When dealing with the issue of mortgage repayments as a discrete issue, the court may take into account both the capital and interest element of the mortgage payments made but sometimes will only take the capital payments into account.

Claims for improvements to property will, save in the most exceptional case, be for post-separation improvements and will be for either a due proportion of the cost of the works or the increase in value, whichever is the lower figure.

Cohabiting couples are each entitled to possession of their co-owned property, provided that the purpose of the trust is to make the property available for occupation and that it is available and suitable for occupation: s.12 TOLATA. If this right is restricted in any way then the occupying party may become liable to pay a notional rent for his or her occupation of the other's share of the property, hence the phrase "occupation rent”.

If one party is excluded from the enjoyment of the property then a right to an occupation rent arises.

Essentially, it comes down to evidence. In all but the clearest case to the contrary, the court may well be driven to find that a party departing from a property following a relationship breakdown is not welcome back and so a liability to pay an occupation rent arises.
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Leyla Shahin-Mehrube,
Category: Family Law
Satisfied Customers: 221
Experience: Family Solicitor at WLH Solicitors
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Customer: replied 11 days ago.
Thank you for the above explanation. I read this too in the family law week article.

If the case went to court am I correct to understand the following:
That on the facts of my situation, I am entitled to occupation rent at a 50% proportion of the market rental value?
Rental value of this property is est as £1700 pcm so I would be entitled to 50% of this equalling £850 pcm (a total of £11,050 over the last 13 months since mid-January 2019).
Should I stop paying my share of the mortgage on the cottage from March 2020 (£334 pcm) I would still be entitled to £516 pcm.
Should I enter the cottage two days per week for the purpose of removing my possessions and making light redecoration, would this nullify or reduce my entitlement to occupational rent even though I would not sleep at the cottage?
Thank you for accepting my answer. It is important to note that litigation is always based on each circumstances of case and there is never such a clear cut answer. However, I do not see a reason why you should go to the property two days a week to redecorate as that is in effect occupying
it even though you are not sleeping there. It is reasonable however to make a one off arrangement to collect your belongings. It is still
your property but if you want to claim occupational rent then you shouldn’t be occupying it at all. Although this is not a rule set in
stone. As far as the mortgage is concerned you are in effect half liable. So it would probably be safer to pay your half of the mortgage and claim backdated occupational rent. Yes you are entitled to 50% of the market rental value.