When Two People Own a House, Can One Kick the Other Out?

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“If DJ and MB co-own a home and MB abandoned the home for several months and paid nothing toward the mortgage, then came back but still paid nothing, does DJ have the right to kick her out? MB has not contributed for over a year and did not live there for about 5 months over the past year. DJ allowed MB to come back assuming that MB has just as much of a right to be there. Neither want to sell the home, but DJ is tired of carrying the free loader. Can DJ make MB leave? Will DJ have to hire an attorney or is it possible to take other steps to make this right?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

You left out one very important fact, here: Are DJ and MB married (or, in a state that allows it, in a marriage-like relationship)? If they are, they should talk to a divorce attorney (even if they’re not contemplating divorce, the attorney can advise you about your property rights during marriage).

Assuming they’re not married, the co-ownership is of one of two forms: joint tenancy or tenancy in common. If you’re curious which, you need to check the deed, but for this question it doesn’t make a difference because it only affects what happens when one co-owner dies. (And before you think of it, killing your co-owner has been tried before. There are laws that prevent you from getting the other part of the property if you do that.)

Both types of co-ownership feature something called an “undivided interest” in the property. That’s a fancy way of saying that, even though you may only own 50% of the property, you can’t paint a line down the middle like a bad ’60s sit-com. Rather, you own 50% of the whole thing. The upshot of that is, both parties are owners of the property, and therefore have the right to do whatever owners normally have the right to do, including live there.

That doesn’t mean that DJ is stuck with MB forever. There is a legal action called “Partition” which allows co-owners to get out of their co-ownership in a relatively orderly manner, usually including credits for one co-owner who contributed more to the property than the other. Going through partition would probably mean selling the property (and splitting the proceeds unevenly, to make up for the extra payments DJ made). You said they don’t want to do this, but since partition actions are fairly straightforward (more a matter of accounting than anything else), you can pretty easily figure out what each party would get IF you partitioned the property . . . and DJ can use this figure to buy MB out – perhaps with the aid of a second mortgage, if necessary.

Ultimately, one party buying the other out is the real solution to this problem. Unless one co-owner voluntarily agrees not to live there, the only other option is selling the property and splitting the proceeds. But this does highlight the value of having a co-ownership agreement whenever you buy property (especially residential property) with someone you’re not married to. A co-ownership agreement could spell out in advance what each party’s obligations are with respect to the property, and even how and under what circumstances a party could buy the other out. If DJ and MB had a co-ownership agreement which obligated them each to pay half the mortgage, DJ could have sued (probably in small claims court) to force MB to cough up the mortgage payments months ago, instead of hiding in her room fuming while MB relaxes in the barca-lounger for free.

Recommended reading (click on the picture for details):
The Cottage Rules: An Owner's Guide to the Rights & Responsibilities of Sharing Recreational Property



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Author: House Attorney

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