In the movies, the break-up scene is often played for comedy. A boyfriend returns home to find that his girlfriend has locked him out, and is throwing his belongings off of a balcony onto the front lawn of their apartment complex. What you don't see are the possible legal consequences of locking an ex-partner out of a shared home, or the recovery of their personal belongings once they're locked out.
When a couple is married, they have the option of filing a court action for divorce or separation, and asking a court to decide which spouse should have access to the marital home. The court's order takes priority over the rights of joint tenancy or joint ownership. That option is not available to unmarried couples.
When an unmarried couple lives together, but one partner owns the home or is the sole tenant in the rental unit in which they live, the tenant who is the homeowner or lessor has an advantage in terms of keeping exclusive possession. However, when a couple has a joint lease, or an unmarried couple is jointly buying a home and both partners are on the deed, the issue becomes more complex: Normally, both partners will have equal rights to the use and possession of the home, and neither will have the legal right to lock the other out.
If the reason for locking your ex- out of a jointly owned home involves domestic violence, or a credible threat by your ex- to the safety of you or your children, you should consider seeking an order of protection. In a growing number of states, the issuance of an order of protection against your partner will allow you to give early notice to your landlord to terminate your obligations under a joint lease. The order will also normally explicitly or by implication give you exclusive possession to a shared home, even if on a temporary basis pending a hearing and review by the court. If your ex- violates an order of protection, you can call the police.
For rental properties, it's often a violation of the lease to change the locks on the rental property without the permission of the landlord, or at a minimum require that a copy of any new key be immediately provided to the landlord. Further, when one joint tenant is locked out, the landlord may choose not to become involved in any domestic quarrel. Absent an order of protection issued on behalf of one tenant against the other, a landlord is bound by the lease -- and if a joint lease gives both partners equal rights to the rental property, as is almost always the case, the landlord can be expected to restore access to the locked-out tenant. No landlord wants to be placed in that position.
If you and your ex- come to an agreement about who will continue to live in your jointly leased rental property, you may approach the landlord about the possibility that the spouse who is moving out might be formally released from the lease. The landlord may not be willing to release a joint tenant during the lease term or, even if willing, may require as a condition of release that the tenant who will remain in occupancy have sufficient credit and income to independently qualify for the lease. In the alternative, it may be possible to end the tenancy based upon payment of an early termination fee.
Jointly Owned Homes
Ideally, an unmarried couple that is jointly buying a home will have entered into a contract that defines their respective rights and duties, including what will happen in the event that they end their relationship. Unfortunately, people rarely show that degree of foresight. Absent an agreement to the contrary, joint owners normally have equal rights to use and enjoy real estate, meaning that it is very difficult to make your ex- move out.
It is best that unmarried partners who jointly own a home find a mutually acceptable resolution to the question of occupancy, and to what will happen with the home, mortgage, property taxes and any equity following break-up. The problems can be even more complicated when the property is worth less than the amount owed on the owners' mortgages and home equity loans. Where one partner attempts to lock the other out, or even when the separation is agreeable but the partners cannot figure out how to divide their interest in or debt from the property, the matter may end up in court -- and litigation over division of real estate is very often slow and costly, with the cost likely to consume or exceed the home equity that the parties might otherwise have divided.
Even if you are the sole owner of your home, or you rented the premises on your own before your partner moved in, your situation may be complicated by your state's landlord-tenant laws. In most states, there must be an exchange of rent in order for a tenancy to be created, but in a small number of states a tenancy might be implied simply from a period of occupancy in which your home was your partner's primary residence. Even if there was no formal agreement to pay rent, your ex- may be able to document payments toward household bills and expenses that a court may regard as amounting to rent. Sometimes the facts weigh pretty heavily in favor of their being an agreed tenancy, such as when your partner makes payments that are agreed to be "rent" or their "share" of the rent.
When a residential tenancy is created, the tenant gains a broad range of rights, including the right to proper notice of termination of their tenancy and protections against self-help eviction, eviction that occurs without a prior court order granting possession of the premises back to the landlord. If an ex-partner is found to have been a tenant, they have the potential to bring an action for wrongful eviction (sometimes called "wrongful detainer") and potentially to recover damages and attorney fees as part of that action.
Although the eviction of an ex-domestic partner rarely actually results in a wrongful eviction lawsuit, it is a possibility that you should keep in mind. If you are living in a state that might recognize your partner as your tenant or subtenant, you need to be very cautious about locking your partner out of the home. Consider instead,
Work Out an Agreement - Negotiate a date that your ex- will voluntarily move out of your home and abandon an claim of right to live in your home.
Help Your Ex- Find a New Home - Perhaps the most common reason why an ex-partner won't move out of the other partner's home at the end of their relationship is that they don't have another place to live. You may be able to help them find a new home.
Offer a Financial Incentive - It may be a touchy subject, but if your ex- is hard up for money you can consider offering some financial help if they move out by an agreed date.
Proceed With a Formal Eviction - Even if it's not legally required, if you follow the landlord-tenant laws of your state, giving proper notice of termination of tenancy and then, if necessary, seeking a court order of eviction, you will be protected if your ex- won't move out and you need to enforce the eviction order.
As the details of eviction law and eviction notices vary by state, you should thoroughly investigate your state's eviction laws or consult a lawyer who handles eviction cases before filing an eviction against against your ex-.
If you lock your ex- out of the home, you can create significant issues in relation to their personal property. Do you want or trust your ex- to have access to your home when you're not there, so that they can recover their property without direct contact or conflict? Do you want to be present, despite the risk of conflict, and if so can you be present at a time that it is mutually agreeable and feasible for your ex- to remove their property from the home? What will you do if, as often seems to happen, your ex- doesn't show up at the agreed time?
Similarly, even if your ex- agrees to move out, you may find that your ex- wants to leave some property behind, perhaps just a box or two, but perhaps some items of furniture, or in some cases a room or garage full of boxes, furniture and other items. Once you agree to store that property for your ex- it can be difficult to inspire your ex- to come back and remove it.
Your best bet, whenever possible, is to help your ex- remove all items of property from your home when they move out. That may involve your offering to assist with the move, finding people to help move large items, finding or renting a truck that can be used to move the property, helping your ex- find a storage unit to temporarily store items that might otherwise be left at your home, helping your ex- transport the items to the home of a friend or relative who is willing to provide a temporary storage space.... Whatever it takes to have a clean break of possession.
If you find yourself with your ex's property in your home, and it's not feasible or mutually agreeable for you to deliver the property to your ex-, you will likely find that you have limited options. State laws usually have little to say about how to dispose of property left in your home by a former occupant, without the potential for being held liable for any losses or damage to the property. You can attempt to convince your ex- to collect the property by indicating that if it is not recovered by a specified date and time, you'll be treating it as having been abandoned or will place it curbside for them to collect -- but you may find yourself liable to your ex- if you carry out your threat and, as a result, their property is damaged, lost or stolen.
If the recovery of personal property is an issue after a break-up, you may consider the possibility of bringing an eviction action against your ex-. Although the facts may in some ways be a poor fit under state eviction law, if you are able to successfully obtain an order of eviction you will have a means of legally removing the property from your premises. Be careful, though, as some states require that landlords store their tenants' property for a period of time following eviction, and such a requirement may put you in the position of having to transport the property to a storage facility and pay storage fees.
A local property lawyer should be able to advise you both about your state's law of bailments, the laws that govern your duties when you are storing somebody else's property, and also whether it would make sense to file an eviction case under the laws of your state.
Although the question of whether an unmarried couple has children does not directly affect their property rights, locking out your ex- can affect any child custody and child support litigation that follows the break-up. Before you lock your ex- out of your home, you should consult a custody lawyer about the ramifications of your action. If you find yourself locked out of your home, with or without your children, it makes sense to promptly seek the assistance of a custody lawyer.
If you are locked out of a home along with children from a prior relationship, and you do not have a place to go, you should check to see what emergency housing assistance is available through your local government.