Cohabitation: Rights to the Home

Nowhere in land law is the tension between the theme of rationality and the emotional dimensions of property more exposed than in the question of whether a non-owning cohabitant is entitled to a share of (or interest in) their co-lived property; and, if so, the quantification of that share or interest. Those are the fundamental debates tackled in this chapter, which focuses on the rights of cohabitants in their homes.1 They are in many ways the Great Debates of our time, masking doctrinal, procedural, political and broad socio-legal issues.2 Those issues highlight the problematic nature of land law’s rational search for intention when the parties themselves may not have expressed it. The first flush of love leads people to do extraordinary things without thought; it is only when, inevitably, that love turns to bitterness and hatred, or, more mundanely, the cohabitants part company, that the issues for land law arise. It is at that latter point, the bitter end, that land law requires the re-construction — or, perhaps, the better word is translation — of events around the tools it provides: the constructive trust and proprietary estoppel.