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Fourth District Court of Appeals Affirms Oral Cohabitation Agreements and Declines to Award Partition Credits Where Mortgage and Related Expenses are Paid From Commingled Funds

The Fourth District Court of Appeals recently affirmed that Florida law recognizes oral cohabitation agreements between unmarried parties and held that there is no entitlement to partition credits for expenses paid using funds belonging to both owners of the subject real property.

In 2013, Plaintiff filed a complaint against Defendant for partition of real property they owned as joint tenants with rights of survivorship. In addition to half of the sale proceeds, Plaintiff sought partition credits for expenses (mortgage and living expenses) paid on the property. Defendant denied Plaintiff’s entitlement to partition credits.

On appeal, the Fourth District Court of Appeals was to determine whether the evidence supported an oral cohabitation agreement and if so, whether Plaintiff was entitled to partition credits for expenses paid using funds belonging to both parties.

The Fourth District Court of Appeals began their analysis by affirming that Florida law recognizes oral cohabitation agreements between unmarried parties, stating that “unmarried cohabitants may agree to enter into an enforceable contract that establishes rights and responsibilities towards each other…as long as it is clear there is valid, lawful consideration separate and apart from any express or implied agreement regarding sexual relations.” Additionally, the Court held that nothing in the Statute of Frauds requires that cohabitation agreements must be in writing. On the issue of whether the evidence supported an oral cohabitation agreement, the Court found that the parties’ course of conduct supported the existence of a sufficiently definite agreement. Specifically, the evidence demonstrated that the parties were in a relationship for over forty years, they commingled their funds, made joint loans together, created identical wills and trusts which left everything to each other.

Moreover, the Fourth District Court of Appeals affirmed the trial court’s decision to decline to award Plaintiff any partition credits, stating that there was substantial evidence to support the trial court’s finding that Plaintiff paid the mortgage and other expenses with commingled funds from both parties, and accordingly, Plaintiff was not entitled to an award of partition credits.

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