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Not Married But Living Together: Breaking up is Hard to Do
People think it is easier when they are not married but living together. Unfortunately, that is not always the case. Sometimes it is harder and more expensive to break up when unmarried but living together than to get a divorce. In fact, there may be greater pitfalls to not getting married, than when an unmarried couple breaks up. When unmarried couples in New York face a breakup, understanding the legal landscape regarding property rights, especially for shared real estate, is crucial.
To be very clear, New York DOES NOT RECOGNIZE COMMON LAW MARRIAGES. You are either married by a person authorized to perform a marriage, or you are not married. When you are unmarried and living together, you are NOT married and do not get any of the protections afforded to a married couple.wl
This article aims to provide a friendly yet professional overview of these rights under New York law, focusing on scenarios where both parties are on the deed and when only one party is on the deed.
Buckle up, this is unfortunately a long article.
1. Joint Ownership: Both Parties on the Deed
Not Married but Living Together: Less Rights than Marriage
In New York, if people are not married but living together buy a house together and both names appear on the deed, they are considered joint tenants or tenants in common. This distinction is vital in understanding each party’s rights upon separation. A married couple automatically buys a house as “Tenants by the Entirety.” This is similar to Joint Tenants.
Unlike Tenants by the Entirety, whether to be joint tenants or tenants in common is not automatic. You have to tell your lawyer before the deed is drafted and signed.
Joint Tenancy vs. Tenants in Common
- Joint Tenancy: In this arrangement, both parties own the entire property together. If one party passes away, the other automatically inherits the entire property, a right known as the right of survivorship.
- Tenants in Common: Here, each party owns a specific share of the property (not necessarily 50/50). There is no right of survivorship, meaning if one party dies, their share passes according to their will or state law if there is no will.
Resolving Disputes When Unmarried but living together
When parties are not married but living together, the issue of a house is very complex. The way the law treats a house owned by parties unmarried but living together is fundamentally different from how it treats it with a married couple.
By the way, the rules I’m setting out below work for any group of people who jointly own property, including siblings, parents and children, business partners, etc.
When a couple is married and gets divorced, the Divorce Court has more flexibility. The Judge can sell the property by hiring a realtor to get the best and highest price. The judge can also trade assets. For example, let’s say the Husband’s share of the house is $150,000 and the Wife’s share of his pension is $150,000. The court can trade the two so that the Husband walks away with his pension and the Wife walks away with the house.
This type of flexibility is simply not available when the parties are not married but living together.
Upon breakup, the parties can agree to sell the property and divide the proceeds. If they cannot agree, one party may file a partition action in court. The court can order the sale of the property and divide the proceeds according to each party’s contribution or agreement.
The Partition action is not pretty.
The Partition Action: The Cons and the Cons (not really any Pros)
Lawyers hate partition action on residential homes because there are no winners. The idea of a partition action arose from farmland. Unfortunately, the law has not kept pace with the reality of unmarried people buying houses together and then splitting up. The original idea was that, if say you and your business partner had 100 acres of land, but couldn’t work together anymore, the court would give each of you 50 acres.
Clearly, this doesn’t work for a residential home bought by a couple who is not married but living together, or as I said above, any group of people owning property. The house has to be sold.
Any co-owner of real property can file a partition action, regardless of the type of property (residential, commercial, or undeveloped land). As mentioned above Co-ownership can arise from a variety of sources not just with people who are not married but living together, such as:
- Inheritance
- Joint purchase
- Business partnership
- Dissolution of a partnership or limited liability company
Filing a Partition Complaint
To file a partition action, the plaintiff must file a complaint in the Supreme Court of the county where the property is located. The complaint must identify the property and all of the co-owners. The plaintiff must also serve the complaint on all of the other co-owners.
Court Appointment of a Referee
Once the complaint is served, the court will appoint a neutral third party, known as a referee, to evaluate the property and make recommendations on the most appropriate partition method. The referee will typically visit the property and inspect it. The referee may also order an appraisal of the property. The referee is paid for by the parties. So, in addition to paying for your lawyer, you will have to split the cost of the referee.
Referee’s Report
The referee will submit a report to the court detailing their findings and recommendations. The report will typically address the following issues:
- Whether the property can be physically divided
- If the property can be divided, how the property should be divided
- If the property cannot be divided, whether the property should be sold and the proceeds divided among the co-owners
Court Decision
Based on the referee’s report, the court will issue a judgment determining the appropriate method of partition and outlining any necessary steps to complete the process.
Partition by Sale
If the court determines that the property cannot be physically divided, or if the parties cannot agree on a physical division, the court will order a partition by sale. In a partition by sale, the property is sold and the proceeds are divided among the co-owners in proportion to their ownership interests.
The sale is an auction on the courthouse steps. When a realtor sells the property, s/he is seeking the best and highest price. That doesn’t always happen at an auction.
The house may be sold for undervalue, and in fact, be sold for under the outstanding balance of the mortgage. That means, the parties no longer own the house, but are still liable for the mortgage.
As I said, when there is a partition, there may not be any winners.
2. Single Ownership: One Party on the Deed
Legal Considerations
Situations where only one party is on the deed are more complex. The non-titled partner may still have rights based on contributions to the property’s purchase or maintenance.
When parties are married, all property acquired during marriage is marital property regardless of whose name is on the deed.
But, when the parties are not married but living together, the person whose name is on the deed is the owner. Period.
Establishing a Claim
The non-titled partner must prove their contributions to have a claim. This can include financial contributions towards the mortgage or significant contributions to the property’s upkeep and improvement. This is not easy and does not always work.
Legal Remedies
- Constructive Trust: A court may impose a constructive trust if it finds that the non-titled partner made contributions with the expectation of a shared interest in the property. This is very complex and very difficult to establish. You really need to consult with an attorney who knows this area of the law, and not hire someone who will wing it.
- Partition Action: While typically used for joint owners, a non-titled partner who establishes a claim may seek a partition action to receive a portion of the property’s value. This is also tough. You will have to convince the judge that you have an “equitable ownership” in the property, mainly but creating a constructive trust. Again, this is very tough
3. Legal Agreements
The Role of Cohabitation Agreements
Unmarried couples are encouraged to have a cohabitation agreement. This contract outlines each party’s rights and responsibilities regarding property and can be crucial in resolving disputes efficiently.
If you really, really don’t want to get married, and really want to buy a house together, go to a lawyer and get a cohabitation agreement. Yes, you can save money and pull a blank from the interest. But, do you really want to take a chance when hundreds of thousands of dollars are on the line?
Enforceability and Requirements
A cohabitation agreement must be in writing, signed by both parties and executed voluntarily. It should be clear, specific, and fair to be enforceable. Courts are very strict when examining and applying contracts to real property. Again, you are strongly advised to get an attorney to draft the agreement.
4. Protecting Your Rights
Legal Representation
Considering the complexities of New York property law, seeking legal counsel is advisable. An attorney can provide tailored advice and represent your interests, whether in negotiating an agreement or litigating a dispute. Yeah, I keep beating this drum. But, when a client walks into my office with an internet document one of two things happens:one, I can’t help them because the matter is totally screwed up or two, I can help but the cost is greater than if they’d used a lawyer in the first place.
Documentation
Maintain thorough records of all contributions towards the property, including mortgage payments, renovations, and major repairs. This documentation can be pivotal in establishing your claim.
5. Conclusion
Navigating property rights in the context of a breakup for unmarried couples in New York requires an understanding of the legal framework and the different scenarios that can arise. Whether both parties are on the deed or only one, there are legal avenues to protect your interests. Having a cohabitation agreement and seeking legal advice are key steps in ensuring a fair resolution.
Not married and living together may seem like an easier option, but as seen above it can lead to greater complications. My advice? Don’t buy a house together and if you are going to do that, then get a cohabitation agreement
If you have questions, call us at Port and Sava at (516) 352-2999 For a free 15 minute telephone consultation.
