In Florida, common law marriages are not recognized. But can a court award one party in a cohabitation relationship an interest in the other person’s solely owned real estate after the relationship turns sour? Under certain circumstances, a court can impose a constructive trust to do equity between unmarried cohabitants. But the burden of proof and the elements of the claim are very difficult to prove. The cohabitant asserting the claim must prove beyond a reasonable doubt by clear and convincing evidence that: (1) a promise was made to grant an interest in the real estate; (2) there was a transfer of some property by the cohabitant to the other person and the cohabitant relied on the transfer in creating the interest; (3) a confidential relationship existed; and (4) the other person was unjustly enriched.
In the recent case of Castetter v. Henderson, 38 Fla.L.Weekly D1166 (Fla. 5th DCA May 24, 2013), the Court reversed a trial court decision which imposed a constructive trust in favor of a woman and against her former live in boyfriend’s solely owned real estate. She testified that she had cooked and cleaned for the both of them, had paid all of the expenses related to their son, and had paid their food and cleaning expenses for a period of 15 years. She argued that by paying for those expenses, her former boyfriend was able to invest his money in real estate. The Appellate Court found that the woman made no financial contribution to the properties purchased and she did nothing to improve or manage the properties: “defraying mutual living expenses is not enough to create an interest in real estate.” Not only did the woman lose her constructive trust on appeal, but as a result of the reversal of the trial court’s decision, she was ejected from the former live- in residence.
