Occupation Rent
What is occupation rent?
When one party occupies the matrimonial house and excludes the other party from the property, it may be appropriate for the party who lives in the house to pay occupation rent.
Is occupation rent awarded routinely?
No, Griffiths v Zambosco a court does have jurisdiction to order a party to pay occupation rent when it is reasonable and equitable to do so. It is a discretionary remedy, Whether or not it is appropriate will depend on the circumstances.
Do you have to make a claim for occupation rent?
Phelps v Childs noted that this remedy must be pleaded by the party making a claim for it. It would be a mistake to give it in the absence of a request for that relief.
What is meant by the fact that occupation rent is an equitable remedy?
Higgins v. Higgins explains that occupation rent is an equitable remedy in that the courts are attempting to balance the equities when dealing with a claim for occupation rent. In other words, it is used to ensure financial fairness between the parties.
What factors are considered in awarding occupation rent?
Saroli v. Saroli proposed a list of relevant factors:
The timing of the non-occupying spouse
The circumstances the non-occupying spouse left the house
The duration of the exclusive occupancy
Whether non-occupying move for sale of home
The inability of non-occupying spouse to realize equity
The financial hardship non-occupying spouse endured as a result of being denied equity
Any reasonable credits to be set off against occupation rent for expenses associated with home
The conduct of both spouses, including failure to pay
Whether children resided with occupying spouse and whether non-occupying spouse paid child support
Whether occupying spouse increased or decreased value of property
Other competing claims in litigation
In Griffiths v Zambosco the Court noted the trial judge is in best position to determine if justified or not.
How has the approach changed in recent years about the award of occupation rent?
Traditionally. The court required some sort of “ouster” and was more of a defense to a claim for contribution to post-separation property expenses. In the appeal of Chhom v. Green, the Court of Appeal stated that the claim must be reasonable and does not need to be “exceptional”.
What is the result of the change in attitude towards occupation rent?
It is increasingly becoming a significant legal claim to consider and forces litigants to address the disposition of the house as quickly as possible to avoid a steep bill for occupation rent.
What is the approach in calculating the amount of occupation rent?
Craig v. Craig discussed an equitable approach would be to allow a claimant ½ of the rent the premises could attract, subtracting half of the taxes, insurance and other property costs.