Can occupation rent apply to partial property exclusion?  

Can a co-owner claim occupation rent where they have not been completely excluded from a property, but their use of it has been significantly restricted? That was one of the issues considered by the court in Rowland v Blades [2021] EWHC 2928 (Ch), a case concerning a jointly owned holiday home.

Facts of the case

Dr Rowland and Ms Blades entered into a relationship in 2006. At the time, they each had their own property.

In 2009, Dr Rowland and Ms Blades purchased a large Grade II listed Italianate villa so that they could spend their spare time there and entertain friends. The property was purchased for just over £1.5 million. The relationship broke down when Dr Rowland entered into a relationship with another woman.

Upon separation, Dr Rowland contended that he had not been able to occupy the property, as Ms Blades had excluded or restricted him from September 2009 until the end of October 2018. Ms Blades submitted that they had agreed in 2008 that Dr Rowland would not take his new partner to the property and that the arrangement did not, therefore, amount to his exclusion. Ms Blades occupied the property most weekends. Dr Rowland’s relationship broke down in 2015; however, he chose not to attend the property thereafter.

Dr Rowland brought a claim against Ms Blades, seeking an occupation rent to compensate him for what he considered to be the unreasonable restrictions that had been placed on his use of the property. Claims for occupation rent commonly arise as part of the wider equitable accounting exercise undertaken by the court when determining financial claims between co-owners.

In determining whether occupation rent should be paid, the master considered sections 12–15 of the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”), which deal with a co-owner’s right to occupy a property and the court’s power to compensate a co-owner who has been excluded from using it.

The master found that Ms Blades had excluded Dr Rowland, but only for three days per week, being the weekends when she occupied the property. He also found it was unlikely that Dr Rowland would have attended the property during the week. He found the period of exclusion ran from 1 November 2008 to 31 October 2015, as the restriction on Dr Rowland’s use of the property no longer existed after his relationship had broken down in 2015. The master found the restriction to be unreasonable.

The next stage was for the court to consider the quantum of the occupation rent claim. To assist the court with this, the parties instructed a single joint expert to opine on the annual rent value, the rental that would have been paid for the occasional weekend and holiday use (based on a daily rent per day of the week), and the rent payable for “occasional weekend and short usage”.

Ms Blades argued that the appropriate occupation rent figure was £36,000, based on the loss of opportunity to enjoy the property every other weekend for six years. Dr Rowland argued that a daily rate of £650 should be applied, producing a much larger figure of £288,800. Neither party’s figure was accepted by the master.

The master instead adopted the figures of the expert, based on rent payable for occasional weekend and short usage of the property from 2009 to 2015 (rather than 2009 to 2018, as contended by Dr Rowland). The figures applied were as follows:

2009-2010: £126 per day x 3 days = £378 x 2 per month = £756 x 12 = £9,072

2010-2011: £131 per day x 3 days = £393 x 2 per month = £786 x 12 = £9,432

2011-2012: £136 per day x 3 days = £408 x 2 per month = £816 x 12 = £9,792

2012-2013: £141 per day x 3 days = £423 x 2 per month = £846 x 12 = £10,152

2013-2014: £147 per day x 3 days = £441 x 2 per month = £882 x 12 = £10,584

2014-2015: £153 per day x 3 days =£459 x 2 per month = £918 x 12 = £11,016

The figures totalled £59,958.

Dr Rowland appealed the master’s assessment of the occupation rent. He argued that the award failed properly to reflect the extent of the loss he had suffered as a result of being excluded from using the property over a prolonged period.

On appeal, HHJ Jarman QC held that Dr Rowland’s loss was greater than the loss represented by occasional weekend and short-term use of the property, but less than the loss of being excluded from a home. The appropriate award therefore fell between those two figures. The judge concluded that a fair award was £120,000.

The appeal was allowed and the award of £59,958 was replaced with an award of £120,000.

The appeal demonstrates that the assessment of occupation rent is not a purely mathematical exercise. The court will seek to award a figure that fairly reflects the nature and extent of the claimant’s loss in the particular circumstances of the case.

The Birketts view

If you have separated from your partner and unreasonably exclude them from using a jointly owned property, whether it be the main residence or a holiday home, you may be ordered to pay occupation rent.

In Rowland v Blades, exclusion was established even though the restriction related to Dr Rowland attending the property with his new partner, rather than attending alone.

It should be noted that physical exclusion from a property is not always necessary in order for occupation rent to be awarded. The court will consider the circumstances of the case and will award it if it is just to do so.

Expert evidence is likely to be required to determine the quantum of any occupation rent claim. It may not be a simple calculation; however, Birketts is well placed to advise you on your legal rights and options in circumstances such as these.