Rights of cohabitants in jointly held real estate – published opinion from Ky Supreme Court



 Questions Presented: Real Estate. Partition. Joint Tenancy with Right of Survivorship. Division of proceeds of sale of realty owned by unmarried cohabiting couple in joint tenancy with right of survivorship.

An unmarried couple owned real estate in joint names with a right of survivorship. Boyfriend made the majority of payments on the home mortgage and down payment over the parties’ fifteen year cohabitation. The couple’s relationship ended and the boyfriend filed a complaint asking the court to divide the equity in the home in proportion to each party’s contributions. The trial court found that the parties had no agreement as to the disbursement of the property and divided the equity equally between boyfriend and girlfriend. The Court of Appeals reversed the trial court’s order holding Kentucky law allows joint tenants to be reimbursed for payments towards encumbrances even without a contract or agreement between the parties. The Supreme Court granted discretionary review.

The Supreme Court majority affirmed the Court of Appeals holding “joint tenants are entitled to proportionate reimbursement for the payment of liens and other encumbrances.” An agreement between cohabitants is not required because a joint tenant who pays a lien on joint property is entitled to proportional reimbursement.

Justice Keller dissented from the majority opinion and was joined by Justice Hughes. Justice Keller argued the majority erred by ignoring the trial court’s findings of fact that were inconvenient to its holding. For example, that the parties had no agreement regarding the property and contributed in different ways throughout their relationship. Justice Keller also argued the majority erred by giving “effect to common law marriage” in violation of Kentucky case law by implicitly extending the rights of marriage to the parties in this case by making the division of property fair and equitable, factors that should only be considered in KRS 403 dissolution cases. Finally, Justice Keller argued the majority erred in analyzing the case as a “contract, family law, or partnership” case when it should have been analyzed as a “simple property case.” Thus, under Justice Keller’s analysis, the equity should have been divided equally between girlfriend and boyfriend as joint tenants.

Digested by Elizabeth M. Howell

Recent Posts

Watch Partner Elizabeth Howell go Over the Edge for Gilda’s Club Kentuckiana!
July 10, 2023
Kentucky Court of Appeals Affirms Fayette Family Court Orders Finding Mother’s Choice in Schools Outside the Residential County to be Unreasonable and Awarding Attorney’s Fees
June 20, 2023
Kentucky Supreme Court Reverses and Remands Order Holding Non-Party Responsible for Attorney’s Fees Due to Non-Compliance with Subpoena
June 20, 2023