Seeing marriage in their future, Andrew and Kent decided to buy a house together. They found a property that needed some renovations, but would generate rental income through a separate apartment. Andrew and Kent split the down payment and closing costs. Because Kent had some credit and finance issues, however, the note was only in Andrew’s name.
Andrew and Kent agreed they would split everything down the middle and opened up a joint account to the pay the mortgage and housing expenses. This agreement, however, was never reduced to writing and evidence showed that only Andrew paid the mortgage.
They began renovations in the summer of 2013, with both parties putting in labor. Andrew and Kent’s relationship soon began to deteriorate and ended for good in October of 2013 after a physical altercation at the house. Both Andrew and Kent obtained orders from the family court directing that each was to stay away from the premises and from each other.
Andrew and Kent brought a partition action in which they essentially asked to court to balance the financial equities. To do so the court had to first determine the date on which Kent’s financial obligations for the premises terminated.
Kent claimed that he was forced out and thus any obligations ended in October of 2013; Andrew claimed that Kent voluntarily left the home. There was no evidence that the Andrew changed the locks on the doors or took any other action preventing Kent from entering the house. Rather, is was the family court, through the temporary order of protection, that prevented Kent from entering the house. And a party ousted by an order of protection remains liable for rent or mortgage payments. Therefore, Kent’s obligations continued up until the filing of the partition action.
Second, the court had to determine the financial equity between the parties for the care and maintenance of the premises. Kent argued that he was entitled to a credit for “sweat equity”—the work he put into the premises to make it livable and rentable. The court recognized that “in considering various equities of the cotenants in partition suit, the court should allow the reasonable value of improvements and repairs to the property, if they were made in good faith and were of substantial benefit to the premises.” But Kent did not produce any evidence as to the value of his work.
Nor did Kent rebut the presumption that the payments made by Andrew for the mortgage and other payments for the upkeep and maintenance of the home was also for the benefit of Kent. There is a presumption that mortgage payments and payments for upkeep and maintenance of a marital home made by a spouse before divorce are for benefit of the other spouse. This presumption is rebutted by proof that one spouse abandoned the other and left that spouse with sole responsibility of maintaining the marital residence. Generally, expenditures made by a tenant in excess of his obligations may be a charge against the interests of a cotenant in a partition action. Since Kent sought one half of the equity of the premises not on the date he alleges to have been “ousted,” but on the date the action was commenced, he certainly did not rebut this presumption.
The court awarded the property to Andrew and ordered Andrew to pay Kent equity of almost $8,000.