Can a joint tenant not in possession of the matrimonial home claim occupation rent?

The point to be made is that the routine application of the law on occupation rent to joint tenants or tenants in common who are married and are disputing over the matrimonial home will often run into conflict with the more flexible provisions of the Family Law Act designed to protect children and dependent spouses. If, as the present law seems to be, no ouster need be proved for a joint tenant not in possession of the matrimonial home to claim occupational rent, that opens the door to such claims solely to counter legitimate claims for spousal and child support, and equalization of net family properties. That was alluded to by Hill J. in McColl v. McColl (supra) at p. 456. It makes little sense, in the vast majority of cases, that a non-dependent spouse or parent should be entitled to occupation rent simply because he or she left the matrimonial home and allowed his or her dependent spouse and children to occupy it. The right to occupation rent arose from the equitable remedy granted to a co-tenant not in possession to obtain an accounting from the tenant in possession, and at least one court considered that the use of the property in the affairs of “the whole family” did not give rise to the payment of occupation rent.

It should also be noted, having regard to the judgment of Hill J. in McColl v. McColl (supra) that claims for occupation rent are quite expensive to pursue, requiring expert evidence as to possible rental rates for the property in question and the usual time-intensive taking of accounts respecting expenses and improvements. Most clients in family law litigation would find the prosecution and defence of such claims beyond their financial resources.

I conclude that where the property in question is a matrimonial home, a claim for occupation rent by one spousal co-tenant against the other will be granted only in the exceptional case. I agree with the view expressed by Hill J. In McColl v. McColl (supra) at p. 457: A number of factors must be considered including when the claim was first raised, the duration of the occupancy, the inability of the non-resident spouse to access her/his equity in the property, and the other compelling claims for adjustment or compensation in the litigation. (emphasis is mine)