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.