Unmarried people in relationships cohabitate all the time.  The stigma our parents warned us would follow really no longer applies.  That being said, societal acceptance of cohabitation does not mean that co-ownership of real property by unmarried people is not fraught with peril.  It is.  As the number of couples deciding to delay or forego marriage rises, the number of clients we see who have elected to purchase real estate in joint names without the protection of the divorce code is also on the rise.  By the time the client sees us for professional guidance, the damage is often done, the relationship has ended and the real estate becomes an instrument of torment or the method by which one party seeks to extract an emotional toll.

Before I go any further, let’s clear one thing up, I am not a divorce attorney - I am a litigator.  So why, you ask, am I writing a blog to warn against the purchase of property in joint names with anyone other than a spouse? The answer gets at the very point of this blog, if you buy property without the benefits of marriage, you will not enjoy the protections afforded by the divorce code, and you will need to hire a litigator to untangle the complications which follow if the relationship goes south.  .

Unmarried individuals as co-owners of real property enjoy the absolute right of “partition” under Pennsylvania law – meaning that the law will not require co-owners of real property to remain co-owners of that property.  An entire section of the Pennsylvania Rules of Civil Procedure is devoted to the mechanism by which ownership is consolidated whether by agreement, division, consolidation of title or, in certain circumstances, private or public sale. At minimum, the co-owners are set to expend significant sums which can be taxed to the real property. 

Partition is an equitable proceeding.  The Court is empowered to appoint a Master to review, investigate and report on a number of equitable issues such as possession, respective contributions, credit for improvements and value.  The Court receives the Master‘s report but is not bound to the Master’s findings and can conduct its’ own evidentiary hearing at its’ discretion.  Every step of the way is an argument and evidence gathering endeavor, the impact of which is never fully in either party’s control.

The best way to avoid the potential for a partition action is to maintain title in a single name unless and until married.  The parties can agree on shared expenses, application of mortgage payments and any other number of factors in a Co-Habitation Agreement.  That Agreement can provide for reimbursement in the event the relationship fails, a lien against the property for contributions or even an option to purchase if the parties so choose.  The point is, co-habitating parties, without the complicating factor of title, can decide in advance how to procced and avoid the costs, time and uncertainties of a partition action.  The time to do so is in advance and not after a transfer of title into joint names.                         

It is not unusual for business owners such as manufacturers and their suppliers and consultants to enter into joint ownership in the pursuit of mutual business goals.  Those pursuing this strategy should consider that such entanglements can lead to costly future litigation should circumstances change and interests of the parties diverge. In a recent case, a dispute arose between owners of a custom manufacturing limited liability company in which AMM’s client (and a supplier to that same LLC) possessed 33 1/3% of the issued and outstanding ownership interests.   The firm’s client also owned 100% of the stock in a separate business entity which supplied materials to the jointly owned custom manufacturer. 

When the owners had a falling out, an issue arose with regard to the payment of outstanding invoices generated by the supplier for materials provided to the jointly owned custom manufacturer.  When a resolution could not be reached, AMM, on behalf of the supplier, commenced litigation.   During the litigation, the majority member of the jointly held custom manufacturer transferred all of the inventory and other assets to a newly formed entity, owned entirely by him, without the payment of consideration, that is to say, without compensating the supplier entity.  The transfer of assets left the jointly held entity with insufficient assets to meet its’ liabilities; including the liabilities to the supplier.   As a matter of strategy, the controlling member of the jointly owned entity allowed default judgment in favor of the supplier and against the jointly held custom manufacturer.  The newly created entity went about doing business utilizing the inventory transferred without regard to the liability to the supplier.

The transfers gave rise to new and additional claims under the recently adopted Uniform Fraudulent Conveyances Act and claims of breach of fiduciary duty; all of which had to be litigated while the newly formed company operated a separate business. Clearly, a small business owner can no longer simply set up shop as a new entity when things go bad and debt accumulates. However, the complexity of ownership structure and relationship between the various entities made judicial intervention very difficult.   In the end, the newly formed entity was forced to file a general assignment for the benefit of creditors; the majority owner lost his interest in all of the respective entities and eventually filed for personal bankruptcy. 

The above is just one of many “war stories” encountered in attempting to unwind jointly owned business enterprises.  Business owners and potential investors should think very carefully before engaging in shared ownership.  What may seem like a mutually beneficial relationship at the outset can be costly and challenging to undo if things go bad in the future.    

The take away for business owners and potential investors is to think very carefully before engaging in shared ownership.  What may seem like a mutually beneficial relationship at the outset can be costly and challenging to undo if things go bad in the future.