Partition: Is Anyone Entitled to a Credit for the Down Payment When Unmarried People Partition Their Home?

Millennials are the largest group of home buyers in 2024, making up nearly 38% of the market. At the same time, less than half of those millennials are married. As a result, we often see this generation purchasing homes together as boyfriend/girlfriend and taking title together as joint tenants with right of survivorship. Inevitably though, the majority will not end up getting married and will break up. What happens when they cannot agree on how to sell their home and on who gets what?

Does it matter that when they bought the home, they were unmarried, but happy and intent on making a future together?

Surprisingly, the answer is yes and it could play a huge role in the Court ordered split of the asset.

In a case out of the Florida Third DCA, Fernandez v. Marrero, Case No. 3D16-2931 (Fla. 3rd DCA 2019)(Opinion Filed September 25, 2019), the Court found that a boyfriend who purchased property jointly with his girlfriend was not entitled to credits for expenses paid towards the purchase and maintenance of the property because they were deemed to be gratuitous in nature; in other words, a gift.

The boyfriend, Fernandez, purchased a home in 2014 with his girlfriend, Marrero. Fernandez alone paid the down payment and closing costs. When their relationship ended, Marrero filed a partition action. While they agreed to the partition, Marrero sought a credit against the proceeds of the sale for the reimbursement of the down payment and closing costs under the theory that the purchase of the home was nothing more than a business transaction.

The Court reviewed the monies paid in connection with the down payment, closing costs, pre-closing expenses and post-closing expenses. The Court found that while a co-tenant would typically be allowed a credit for down payment monies and closing costs monies paid, that presumption does not exist when the party who paid for the other party’s share did so in furtherance of the giving of a gift and of their relationship. The Court found that Fernandez was not entitled to any credit for the down payment monies and the closing costs monies.

Naturally, things like this may not be on anyone's mind when they are filled with joy at buying a home together. So before you make that purchase, think about hiring counsel to draft an agreement to protect you should things not go as planned. . .