An occupancy right in Scotland is the legal right of an individual to enter, occupy and use a house (heritable property) regardless of ownership or who the tenant may be. Broadly speaking occupancy rights are acquired by a spouse or civil partner who is married or civilly partnered to the tenant or owner of a property.

Occupancy rights for spouses

Before the introduction of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 spouses in Scotland who did not own their home with their spouse, did not automatically acquire occupancy rights in the home they shared with their spouse. This deficiency left spouses vulnerable to ejection at will and provided no remedy to victims of domestic violence to eject their spouse from the home if the perpetrator of the abuse was the sole owner or tenant, nor could they acquire the right to occupy it.

The 1981 Act remedied this deficiency, bestowing an automatic right on spouses (and since 2006 civil partners) to occupy the matrimonial home. This absolute right gives spouses and civil partners valuable protection against ejection and the legislation also provides a mechanism whereby abusive spouses and civil partners can be excluded from a property which they own or of which they are tenant, by order of the court.

Occupancy rights for cohabitants

This is, however, in stark contrast to the more vulnerable position of cohabitants as our legal framework does not currently provide cohabitants with automatic occupancy rights. This means that cohabitants may be vulnerable to ejection in the event of relationship breakdown if permission to occupy the home is withdrawn. Although our existing legal framework does not confer automatic rights of occupancy on cohabitants, there are remedies available through a court to cohabitants who find themselves vulnerable to eviction.

Cohabitation and how to secure occupancy rights

Cohabitants can apply to the court for temporary occupancy rights in the property they share with their partner under section 18(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

There are broadly speaking two scenarios in which an application for occupancy rights may be made:

1. To provide a cohabitant with the right to live in a property they have been sharing with their partner if that partner does not wish them to continue living in the property; or

2. In conjunction with an exclusion order to prevent their partner temporarily occupying the property if their safety is at risk (a court will only grant an exclusion order to cohabitants who have occupancy rights (section 18(3), Matrimonial Homes (Family Protection) (Scotland) Act 1981) ).

The granting of an application for occupancy rights will depend on the facts and circumstances of each case and rights will be granted for a maximum period of six months, although an application to extend can be made before the expiration of this period.

The law on cohabitation is currently under review by the Scottish Law Commission and a report on the consultation responses is due early 2022. Whilst it is not anticipated that occupancy rights of cohabitants will be the subject of any significant change, the rights of cohabitants in other aspects are likely to be strengthened. Watch this space.