Rent is income – that’s pretty clear. The IRS requires you to declare rental income received on a Schedule E, and the Colorado child support statute’s definition of income includes “rents”. C.R.S. 14-10-115(5)(a)(I)(J). The maintenance statute has a similar provision. C.R.S. 14-10-114(8)(a)(I)(J).
And Colorado courts will impute income to people who are voluntarily under-employed and could be earning more, or to people who are sitting on a pile of cash and not investing it. But what happens if a court tries to combine these two principles, and impute rent to a person with a roommate who is not actually paying anything?
A brand-new decision from the Colorado Court of Appeals has held that a court cannot impute rent to a person who is sharing his primary residence, where the residence has not traditionally been used as rental property. Gibbs.
In Gibbs, the father was living in the 5-bedroom former marital residence with his girlfriend and her three children. The girlfriend was not paying rent, though she did pay for utilities and groceries (such sharing of expenses is not typically counted as rent).
The trial court found that this was not a fair market exchange, as the value of the rent-free living far exceeded the cost of utilities and groceries, and that the father should have been charging rent. Accordingly, the trial judge imputed $1500/mo of rent to the father, which it found to be the value of the rent he was voluntarily foregoing.
The Court of Appeals recognized this was a case of first impression:
“no Colorado statute addresses whether potential rental income can be imputed to a party for purposes of calculating maintenance. Nor does any Colorado statute address whether potential rental income from a party’s primary residence that has never before earned rental income can be imputed to that party for purposes of calculating maintenance.”Gibbs, ¶ 21.
The court then reversed the trial judge, in effect holding that when a person was acting in good faith, judges could not force him to become a landlord:
“No evidence in the record shows that the residence ever produced income. There is also no evidence indicating that husband was acting in bad faith by staying in the residence to inflate his monthly expenses and avoid paying maintenance to wife. By imputing rental income to husband, the court effectively recharacterized husband’s home from a primary residence to an income-producing rental property. This was, in our view, an abuse of discretion.”Gibbs, ¶ 22.
Note that the decision is not a prohibition on any imputation of rent under any circumstances, and is limited to situations where a person is living rent-free in a party’s primary residence:
“we conclude that, where a party has not historically earned rental income from his or her primary residence, potential rental income from that asset cannot be imputed to the party for purposes of calculating maintenance.”Gibbs, ¶ 24.
This suggests that rent may potentially be imputed when a party is allowing someone to live rent-free in a property which is not his/her primary residence, or even perhaps in a basement apartment, rather than a friend/significant other who lives with the person. So for purposes of child support or maintenance, it’s at least worth exploring, even if ultimately there is no rent to impute.
More Information on Rental Income
See the all-new Rent Income & Family Support article in the Colorado Family Law Guide for a complete discussion of how rent is treated for purposes of child support and alimony in Colorado.
And for a discussion of a 2022 decision allowing depreciation as a rental expense, see our blog post on straight-line depreciation and rental income.
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