Two people own a house together, but only one of them lives there.
The other owner moved out months—or even years—ago. The owner who stayed behind has had the entire house to use, while the other co-owner has received nothing.
A natural question follows:
Can the co-owner who moved out charge the other owner rent?
Under New York law, not automatically.
A co-owner generally has a legal right to possess the entire jointly owned property. Simply living there alone usually does not make that owner a tenant of the other owner or create an obligation to pay market rent.
The result can change, however, if the parties agreed that the occupying owner would pay for the use of the property or if one co-owner actually excluded the other from possession.
Why Doesn’t the Occupying Owner Automatically Owe Rent?
A tenancy in common gives each co-owner a right to possess and use the whole property, even when their ownership percentages are different.
That means a 50% owner does not own only half of the bedrooms, and a 25% owner does not have the right to use only one-quarter of the house.
New York courts have repeatedly recognized this principle.
In Cooney v. Shepard, the Appellate Division considered a partition case in which one co-owner had occupied the jointly owned property and the other owners sought rent for his sole use of it.
The court rejected the claim. It explained that mere occupancy by one co-owner does not make that owner liable to the others for use and occupancy unless there is an agreement requiring payment or an ouster of the other owners.
The Second Department applied the same rule in Perretta v. Perretta: a tenant in common generally is not liable to another co-owner for use and occupancy in the absence of an agreement or ouster.
So the fact that one person gets more practical use out of the property does not, standing alone, create a rental obligation.
What Is an Ouster?
An ouster occurs when one co-owner excludes another co-owner from exercising the possessory rights that come with ownership.
The important distinction is between:
Choosing not to live at the property, and
Being prevented from using the property.
If one owner voluntarily moves elsewhere while remaining free to enter and use the jointly owned property, the owner who stayed behind ordinarily is not required to pay rent simply because that owner is the only person physically living there.
But if the occupying owner actually denies the other co-owner access or otherwise prevents that person from exercising the same right of possession, a claim for use and occupancy may become available.
The First Department addressed that distinction in First Majestic Silver Corp. v. Heitz. The court held that a co-owner may potentially be liable where the property is occupied to the exclusion of the other co-owner, although the party seeking payment bears the burden of establishing the ouster.
Whether an ouster occurred is therefore highly fact-specific.
Does Sole Occupancy Prove an Ouster?
No.
This is an important point.
The fact that only one co-owner physically lives at the property does not necessarily mean that the other owner was excluded.
New York courts distinguish exclusive physical occupancy from legal exclusion.
A recent 2026 New York decision explained the principle in particularly practical terms: even a co-owner holding only a 25% interest has a right to possess the entire property, and mere occupancy by another co-owner does not create use-and-occupancy liability absent an agreement or ouster.
So a partition case involving occupancy may require evidence concerning what actually happened between the owners rather than simply determining who slept at the property.
What If We Agreed That the Occupying Owner Would Pay?
An agreement can change the analysis.
If the owners agreed that one person would have exclusive use of the property in exchange for paying the other owner a particular amount, that agreement may provide an independent basis for seeking payment.
The existence and terms of the agreement can therefore become important.
Emails, text messages, written agreements, payment records, and other communications may help establish whether the occupying owner actually agreed to compensate the other co-owner.
Without an agreement, the claim generally must rest on something more than the fact that one owner remained in possession.
Is This Different From One Co-Owner Collecting Rent From Tenants?Yes.
This distinction is critical.
If jointly owned property is rented to a third-party tenant, the rent collected is income generated by the property. A co-owner who receives more than his or her proper share may be required to account to the other owners.
RPAPL § 1201 expressly permits a joint tenant or tenant in common to recover a proper proportion from a co-tenant who has received more than that co-tenant’s share.
That is different from a co-owner personally living at the property.
We discuss the third-party rental situation separately in “If My Co-Owner Collected All the Rent, Do I Get a Share in a New York Partition Action?”
How Does an Occupancy Claim Affect the Partition Accounting?A valid use-and-occupancy claim can become part of the broader accounting between the owners.
But it usually should not be viewed in isolation.
The occupying owner may also claim credits for mortgage payments, real estate taxes, insurance, necessary repairs, or other property expenses.
New York courts treat an accounting as a necessary part of determining the parties’ respective equities in a partition action. In Hamilton v. Hamilton, decided July 29, 2026 and corrected through September 9, 2026, the Second Department reversed a partition judgment because the trial court had not ensured an accurate accounting before directing the sale.
The ultimate accounting may therefore involve both charges and credits before the sale proceeds are distributed.
The Bottom Line
If your co-owner lives alone in jointly owned New York property, you generally cannot charge that person rent simply because you are not living there.
Each co-owner ordinarily has a right to possess the entire property.
The analysis may change if there was an agreement requiring payment or if the occupying owner actually excluded the other co-owner from exercising his or her possessory rights.
That distinction—sole occupancy versus actual exclusion—can determine whether a use-and-occupancy claim belongs in the partition accounting.
If a dispute is developing, records showing access to the property, communications between the owners, any agreement concerning occupancy, property expenses, and the circumstances surrounding one owner’s departure may become important later.
Attorney Advertising. This article is for general informational purposes only and does not constitute legal advice. Prior results do not guarantee a similar outcome. The application of New York partition law depends on the facts and circumstances of each matter.