Purchasing a new home should be an exciting time, whether it’s your first home, your vacation home, or your forever home. But for many first-time buyers with no experience in the home-buying process, purchasing a home often turns into a stressful experience, leaving you and your significant other riddled with questions and concerns that you may not know the answer to.
Worse yet, real estate investors are purchasing U.S. homes at higher levels than they had previously, meaning once you and your partner do find the right home for you, you’ll likely have competition for it, too.1
But you and your partner are careful people. You both have done your research – you’ve looked at homes in safe areas, homes in great school districts, and homes that give you the most bang for your buck. When you finally find that house, a place that you can call home, you don’t rush into the purchase – you continue to be prudent. You negotiate a good deal, you make sure an inspection is done, you make sure that the home is structurally sound, and you go out and meet the new neighbors.
You are finally ready to pull the trigger – you’ve done all your homework, you’ve crossed your t’s and dotted your i’s and you’re ready to start this new chapter in your relationship.
What Happens After My Unmarried Partner and I Purchase a Home Together and Our Relationship Doesn’t Work Out?
Unmarried couples make up 18% of all first-time homebuyers for the first time, according to a report by the National Association of Realtors.
Despite this, Ohio law strongly favors the purchase of homes by married couples, which leads to some unexpected outcomes for non-married couples who purchase a home together that can create big problems in the event they break up.
But you’ve lived together for years and you operate as a married couple? Shouldn’t that count? In Ohio, a common law marriage is the “marital joinder of a man and a woman without the benefit of formal papers or procedures.”2 Ohio does not recognize common law marriages on and after October 10, 1991.3
This can present a problem for unmarried couples who purchase a home and live together because “there is ‘no precedent in Ohio for dividing assets or property based on mere cohabitation without marriage.’”4 Thus, purchasing a home with your unmarried partner can present unforeseen issues down the road.
My Unmarried Partner and I Went Ahead and Purchased Our Home – What Are My Rights?
We strongly recommend that you consider what rights and obligations you and your unmarried partner want each other to have with respect to your new home prior to the purchase of your home. If however, you’ve already purchased your home with your unmarried partner, the default interest that you and your partner obtain in the property is called a tenancy in common.5
As a tenant in common, each individual has a separate and distinct title and the tenant in common’s interest in the real estate can be transferred, devised or encumbered separately and without the consent of the other tenant(s) in common.6
In the state of Ohio, a tenant in common may recover from another tenant in common his or her share of rents and profits received by such tenant in common (R.C. 5307.21). Note too, that as a tenant in common, you or your unmarried partner may convey a leasehold interest transferring you or your co-tenant’s right to physically possess the property.7
As a result, if you and your significant other choose to go separate ways and you wish to remain in the home, your former significant other could rent his or her share of the home to a third party, that you could be forced to cohabitate with. If however, your significant other chooses not to rent his or her share to a third party, you could be responsible to pay rent to your former partner, for your unimpeded and exclusive enjoyment of the entire property.
Note too, that tenants in common do not enjoy the right of survivorship.8 What this means is upon your death, your interest may pass to your heirs and not to your surviving co-tenant, or unmarried partner.9
Can I Be Forced Out?
One of the biggest pitfalls in purchasing a home as tenants in common with your unmarried partner is what happens in the event your relationship does not last.
Ohio has a specific partition statute, found at R.C. 5307. Under Ohio’s Partition Statute,
“[i]f the court of common pleas finds that the plaintiff in an action for partition has a
legal right to any part of the estate, it shall order partition of the estate in favor of
the plaintiff...”10
If after partition an amicable division of the property cannot be achieved and division of the home would cause serious injury to its value, one party may be able to keep the home upon payment to the other tenant in common their half of the appraised value of the home.11
However, if that party elects not to take the home, the other party may request that the Court order a sale of the home at public auction.12 The proceeds would then be split amongst the owners.
The Ramifications of a Tenant in Common Do Not Fit What My Partner and I Want – What Do We Do?
Talk to an estate planning attorney. While there are many other ways you and your unmarried partner may be able to craft how your home is titled, an experienced estate planning attorney can best guide you through the home-buying process to determine what is most suitable for you and your significant other.
For instance, two unmarried people may instead elect to own their new home as joint tenants, with the right of survivorship. The “right of survivorship” may sound like exactly what you want. If you are able to navigate the legal intricacies required by a joint tenancy, when you pass away, your share in the real estate, your home, passes to your surviving partner.13
But, in Ohio, if your unmarried partner decides to convey his or her interest to a third party, your joint tenancy could be severed. What does that mean? Upon severance of the joint tenancy, you and the third party would be tenants in common, again, without the right of survivorship.
What Should I Be Aware of Prior to Purchasing a Home with My Boyfriend/Girlfriend?
Prior to agreeing to purchase a home with your significant other as an unmarried couple, you should consider the following:
- Speak with an Attorney - An experienced real estate attorney can help you navigate the home-buying process and can assist you in understanding your rights and obligations with respect to your partner and your new home.
- What Form of Ownership Best Suits Me - This is where your attorney can help. Mapping out a list of your wants and needs when it comes to home ownership is a great start to begin planning for ownership of your future home.
- Financial Transparency - Talk with your significant other. Think about your income versus their income, your debts versus their debts, and how soon you intend to pay off any mortgage you may have.
We’re Here When You Need a Real Estate or Estate Planning Lawyer
Whether you’re thinking about purchasing a home with your unmarried partner, or you’re curious about your rights with respect to the home you and your significant other have already purchased, consulting an attorney is always a smart decision.
Obtaining legal advice prior to purchasing a home can be a powerful tool to safeguard your hard-earned money. Consulting with an experienced real estate attorney like those at Plakas Mannos can help you navigate this process effectively and ensure that your rights are protected. If you need assistance with making a home purchase with your unmarried partner, contact our office at 330-455-6112 to talk to an estate planning attorney near Stark and Summit County.
Our team of real estate and estate planning lawyers are here to help you or your family. If you or a family member need guidance in purchasing your first home, your next home, or your forever home, please do not hesitate to contact us.
About the Authors
Jim Mannos is a partner at Plakas Mannos whose practice focuses on real estate transactions, estate and probate matters, family law, and Claimant-side workers’ compensation matters.
Michael John is an associate attorney, practicing in general litigation, personal injury, and domestic relations.
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