DOCSLIB.ORG

Land Law Jan 13

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Land Law Jan 13 LEVEL 6 - UNIT 9 – LAND LAW SUGGESTED ANSWERS – JANUARY 2013 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2013 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 The decision of the Supreme Court in Kernott v Jones (2011) is the latest in a long line of judicial decisions seeking to establish the nature of implied trusts of the family home. Where cohabiting couples have considered the division of property on sale or the breakdown of the relationship and have expressed the nature of the trust, there can be little problem. An express trust of land will be recognised so long as the relevant formality requirements are satisfied (s53 Law of Property Act 1925): it is made in writing and signed by the settlor or settlors. It is often the case that such trusts appear on the face of the transfer of the property to the trustees. Where such an express trust is not found a resulting or a constructive trust may be implied. A presumption is raised that the people who advance the purchase money at the time of acquisition of property are entitled to a proportion of the value of that property equivalent to the proportion they paid towards the purchase price (Dyer v Dyer (1788)). The presumption can be rebutted by evidence that the money was a gift or loan, or by express wording to the contrary (Re Sharpe (1980), Cowcher v Cowcher (1972)). Where there has been contribution to the purchase price by both parties, the use of the resulting trust provides some remedy to both parties. The resulting trust, however, may not provide a fair division of value where the purchase price was paid wholly or mostly by one party, or where the other party has made a significant contribution to the running of the household after purchase, or has, for instance contributed towards the building costs of an extension. Page 1 of 15 A constructive trust is, in theory, imposed when it is unconscionable for the legal owner to deny the beneficial interest. According to Lloyds Bank plc v Rosset (1990), the person claiming to be the beneficiary of a constructive trust must show either: an express common intention at the time of purchase that the property be owned jointly together with detriment; or a common intention implied from the circumstances together with a contribution to “bricks & mortar”. Thus in Grant v Edwards (1986), the express intention was manifested by the defendant’s assurance that the legal estate would be in joint names but for that it would complicate his divorce, and detriment was shown by bringing money in to the household and paying some of the bills (note that there was not direct contribution to “bricks and mortar”). It seems that the detriment required following proof of an express common intention need not be great. In Hammond v Mitchell (1991) it amounted to demurring in the legal owner granting a charge over the property, although in the absence of the claimant having a demonstrable interest in the property before that point, it is difficult to see how she might have prevented the property being charged. Where there is no express common intention, the courts will look at all of the circumstances to see if such an intention can be implied. Here the claimant will have to show a direct contribution to “bricks and mortar”. In Passee v Passee (1988), making payments towards the mortgage was sufficient, but, tellingly, in Burns v Burns (1984) giving up work to keep the house and raise children was not. More recent decisions (Oxley v Hiscock (2004) and Stack v Dowden (2007), for instance) have demonstrated a greater willingness by the courts to impose a constructive trust (even where a resulting trust might be normally be presumed) on the breakdown of a cohabiting relationship. In those cases the courts seemed to recognise that the imposition of a resulting trust was a “blunt instrument” in determining the distribution of the asset. But this can only be done where the common intention and detriment or contribution can be demonstrated. If the parties have never discussed the matter, no express common intention arises and thus the claimant faces the high hurdle of showing contribution: this creates problems in the cases which seem most to require justice, where one party has given up work and career to raise a family. Earlier decisions concerned the “sole ownership” cases. More difficult have been the situations where the parties are joint legal owners, but where no express trust is in place. Historically, equity would follow the law, and the parties were deemed to be beneficial joint tenants. Following Stack, this approach could rebutted by strong evidence of a contrary intention between the parties. Judged against the unusual facts of that case (that the parties had punctiliously separated their respective finances throughout their relationship), it seemed that few couples would be in a position to rebut. In Jones v Kernott (2011) the Supreme Court made it clear that a resulting trust should not be applied to disputes concerning the family home (whether solely or jointly owned). Instead, the starting point in joint ownership cases would be a joint tenancy, but the bar appears to be lowered in comparison with Stack, as if the objective common intention is otherwise, the presumption will be rebutted and a constructive trust applied. Page 2 of 15 In sole ownership cases, a constructive trust will be applied where the claimant can demonstrate a right to beneficial ownership (whether by contribution to purchase price or pursuant to a common intention constructive trust). Once the Court is satisfied that a constructive trust should be imposed, the claimant’s remedy is a share “that is fair having regard to the whole course of dealing” between the parties. Significantly, the Supreme Court held that the parties’ intentions could change through the course of the relationship and the ownership of the property, and that the parties’ respective shares could change in consequence. In Gallarotti v Sebastianelli (2012) the Court of Appeal confirmed that Jones applied in all “domestic” cases: in that case, the co-owners were friends who could not afford to buy their own homes independently; they were no cohabitees. It is arguable that Kernott has brought clarity to the area; the blunt instrument of a resulting trust is no longer to be considered; and the approach to single and joint ownership cases is largely common, and clearly stated in the judgment. Set against this is the loss of certainty arising from resulting trusts. The recognition that the parties’ intentions can change over time, and the apparently “ambulatory” nature of the modern constructive trust, combined with the broad brush approach to quantification must, it is argued, be the most significant factor in the argument that the doctrine is considerably less certain that was the case following Rossett. Question 2(a) Section 205 of the Law of Property Act 1925 defines “land” as including, inter alia, all corporeal and incorporeal hereditaments. This includes the land itself, buildings, and things forming a physical part of the land and buildings, as well as rights appurtenant to the estate. Assuming that the transfer is of only the estate (i.e. there is no provision in the contract for the transfer of fixtures and fittings), the purchaser will acquire, in terms of corporeal hereditaments, fixtures (but not fittings) and fructas naturales (not fructas industriales). The original test to distinguish fixtures (land) and fittings (chattels) is the "degree of annexation test", although problems can arise with "temporary" or "lean to" buildings. Other things attached to land were seen as land so long as they were firmly attached. Thus if a one ton statue was bolted down, it was land, if not, a chattel (compare Holland v Hodgson (1872) and Berkeley v Poulett (1977)). The courts recognised the problem and addressed issues with consideration of whether things on the land formed a part of an "architectural scheme of decor". Thus a tapestry nailed to the wall which was in keeping with a theme of decoration was land, whilst one simply nailed to the wall so it could be seen, was not (Compare Leigh v Taylor (1902) and Re Whaley (1908)). The narrow application of the idea of a “scheme of décor” is of limited utility in the context of modern home ownership, however. The more modern test is the "purpose of annexation" test. This test asks why the object has been attached: for its own purpose, or for the enhancement of the land. Page 3 of 15 The case of TSB Bank plc v Botham (1996) casts some light on its application to things one expects to find in a modern home. Botham invites the court to distinguish fixtures and fittings on the basis of permanence & lasting improvement and relevance or utility and ease of removal. In that case, kitchen and bathroom units were considered fixtures, whereas white-goods and gas fires, given their limited annexation and short working lives, were considered fittings.
Load more

Recommended publications
  • Sharing Homes: a Discussion Paper
    The Law Commission (LAW COM No 278) SHARING HOMES A Discussion Paper Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty November 2002 Cm xxxx The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman 1 Professor Hugh Beale QC Mr Stuart Bridge Professor Martin Partington CBE Judge Alan Wilkie, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This Discussion Paper was first published online on 18 July 2002. The text of this Discussion Paper is available on the Internet at: http://www.lawcom.gov.uk 1 At the date this report was signed, the Chairman of the Law Commission was the Right Honourable Lord Justice Carnwath CVO. ii THE LAW COMMISSION SHARING HOMES A Discussion Paper CONTENTS Paragraph Page Executive Summary vi PART I: INTRODUCTION 1 The shared home 1.6 2 A property-based approach 1.23 6 PART II: THE CURRENT LAW 9 Introduction 2.1 9 Trusts of land 2.4 10 Legal and beneficial ownership of the shared home 2.10 11 Legal title – joint tenancy 2.12 11 Beneficial ownership- joint tenancy or tenancy in common 2.16 12 Resolution of disputes between trustees and beneficiaries 2.23 14 Dealings with third parties 2.27 15 Occupation of the shared home 2.32 17 Where a person has an interest under a trust of land 2.34 17 Matrimonial home rights 2.37 18 Orders regulating
    [Show full text]
  • Rethinking the Common Intention Constructive Trusts in Stack V Dowden and Jones V Kernott – Should the Resulting Trusts Be Preferred?
    Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? by Yee Ching Leung Abstract Yee Ching Leung takes the two landmark cases, Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, as starting points to consider the new Common Intention Constructive Trust approach in dealing with the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. The article analyses whether this new approach should be preferred over the traditional Resulting Trust approach. The author explains the two approaches and gives three arguments in support of the Resulting Trust approach. First, it provides a greater degree of certainty, which is crucial in property law. Secondly, the traditional approach is more coherent in principle when comparing to the Common Intention Constructive Trust approach. Thirdly, the author argues that the Resulting Trust approach would not leave the discretion of judges unconfined. Toward the end of the article, the author gives two brief replies to the critics of the Resulting Trust approach. However, the Common Intention Constructive Trust approach is now the law of England and whether the Resulting Trust approach will return remains to be seen. I. Introduction This article concerns the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. Generally, the issue can be resolved by either an express trust or an express agreement. However, in a domestic context, it is common that cohabitants do not make explicit arrangements. Accordingly, the courts have to decide the issue when disputes arise during their separation.
    [Show full text]
  • Oxley V Hiscock Court of Appeal [2004] EWCA Civ
    Page 1 Oxley v Hiscock Court of Appeal [2004] EWCA Civ 546, [2005] Fam 211, [2004] 2 FLR 669, [2004] Fam Law 569, [2004] Conv. 496 HEARING-DATES: 6 May 2004 6 May 2004 CATCHWORDS: Property -- Unmarried couple -- Property in name of one party -- Unequal contributions to purchase price by both -- Assessment of quantum of parties' respective beneficial interests -- Principles to be applied HEADNOTE: When the couple first began to cohabit, they lived in a house occupied by the woman as a secure tenant. After a short time the woman exercised her right to buy the house, using money provided by the man. The property was in the woman's sole name, but to safeguard the man's beneficial interest a legal charge in his name was registered against the house. The house was eventually sold and the proceeds used to purchase another property, this time in the man's sole name. Ignoring any liability for interest under the man's legal charge, the effective contributions by the couple were £36,300 by the woman and £60,700 by the man, a fur- ther £30,000 being borrowed from the building society. Despite receiving legal advice on the importance of clarifying the beneficial interests concerned, no declaration of the parties' respective beneficial interests was made and no charge was registered in the woman's name. For a number of years the couple lived together in the property, both working and contributing to household expenditure, and both working on improvements to and maintenance of the property. Following the breakdown of the relationship, the property was sold for £232,000, and the couple moved into two separate homes, one purchased in the woman's name, using £33,000 of the proceeds of sale, and one in the man's name.
    [Show full text]
  • Cohabitation: the Financial Consequences of Relationship Breakdown
    The Law Commission (LAW COM No 307) COHABITATION: THE FINANCIAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty July 2007 Cm 7182 £xx.xx The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Etherton, Chairman Mr Stuart Bridge Mr David Hertzell1 Professor Jeremy Horder Mr Kenneth Parker QC The Chief Executive of the Law Commission is Mr Steve Humphreys. The Law Commission is located at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. The terms of this report were agreed on 3 July 2007. The text of this report is available on the Internet at: http://www.lawcom.gov.uk 1 Mr David Hertzell was appointed a Law Commissioner with effect from 1 July 2007, in succession to Professor Hugh Beale QC, FBA. The terms of this report were agreed on 3 July 2007. ii THE LAW COMMISSION COHABITATION: THE FINANCIAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN TABLE OF CONTENTS PART 1 - INTRODUCTION 1 THIS REPORT 1 WHY IS THIS ISSUE IMPORTANT? 2 Demographic data and future projections 3 Public attitudes towards cohabitation 6 THE BACKGROUND TO THE PROJECT 6 TERMS OF REFERENCE 7 THE CONSULTATION PAPER 9 The Consultation Paper’s provisional proposals in outline 9 THE CONSULTATION PROCESS 10 RECENT DEVELOPMENTS 11 Recent decisions of the House of Lords 11 Recent research 12 Debate in Parliament and beyond 13 Child
    [Show full text]
  • The Search for a Legal Framework for the Family Home in Canada and Britain Conway, H
    Osgoode Hall Law School of York University Osgoode Digital Commons Research Papers, Working Papers, Conference Osgoode Legal Studies Research Paper Series Papers 2014 No Place Like Home: The eS arch for a Legal Framework for the Family Home in Canada and Britain Heather Conway Philip Girard Osgoode Hall Law School of York University, [email protected] Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/olsrps Recommended Citation Conway, Heather and Girard, Philip, "No Place Like Home: The eS arch for a Legal Framework for the Family Home in Canada and Britain" (2014). Osgoode Legal Studies Research Paper Series. 25. http://digitalcommons.osgoode.yorku.ca/olsrps/25 This Article is brought to you for free and open access by the Research Papers, Working Papers, Conference Papers at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Legal Studies Research Paper Series by an authorized administrator of Osgoode Digital Commons. OSGOODE HALL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES Research Paper No. 39 Vol. 10/ Issue. 09/ (2014) No Place Like Home’: The Search for a Legal Framework for the Family Home in Canada and Britain Conway, H. & Girard, P. (2004). No place like home’: The search for a legal framework for the family home in Canada and Britain. Queen’s Law Journal, 30, 715-771. Heather Conway & Philip Girard Editors: Editor-in-Chief: Carys J. Craig (Associate Dean of Research & Institutional Relations and Associate Professor, Osgoode Hall Law School, York University, Toronto) Production Editor: James Singh (Osgoode Hall Law School, York University, Toronto) James Singh (Osgoode Hall Law School, Toronto – Production Editor) This paper can be downloaded free of charge from: http://ssrn.com/abstract=2434712 Further Information and a collection of publications about Osgoode Hall Law School Legal Studies Research Paper Series can be found at: http://papers.ssrn.com/sol3/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=722488 Osgoode Legal Studies Research Paper No.
    [Show full text]
  • Resulting Or Constructive Trust: Does It Matter? Faizi V Tahir
    Resulting or Constructive Trust: Does it Matter? Faizi v Tahir [2019] EWHC 1627 (QB) Introduction Faizi v Tahir is part of a long line of confusing cases on non-express trusts of land.1 It presented particular difficulties because the relevant property was purchased as neither a joint home nor a commercial investment. With respect, however, this does not fully excuse the potential problems created by the judgments in omitting adequately to distinguish between resulting and constructive trusts. After outlining the facts and both judgments, this note seeks to analyse on what basis the decision was, and should have been, taken, and whether its correct basis truly matters. The Facts Faiz Faizi (“the claimant”) began to live at a Luton property in 2006. On his account, he was advised that he was unable to obtain a mortgage because of his then immigration status, so he and Mohammed Tahir (“the defendant”), whom he met through a mutual friend, agreed that the property would be purchased in the defendant’s name, with legal title to be transferred to the claimant at a future date. In reliance on this arrangement, according to the claimant, he paid the deposit, the purchase costs and (some of) the mortgage instalments, as well as financing and undertaking improvements (a garage conversion and a small extension) to the property. He blamed his slowness in seeking to have the property and the mortgage transferred to his name on delays with his British citizenship application. The claimant’s account, however, was resisted by the defendant, who asserted that he purchased the property to aid his own wife’s application for a UK residence visa.
    [Show full text]
  • The Remedial Constructive Trust – Fact Or Fiction” Queenstown, New Zealand 10 August 2014
    COMMENTARY ON LORD NEUBERGER’S “THE REMEDIAL CONSTRUCTIVE TRUST – FACT OR FICTION” QUEENSTOWN, NEW ZEALAND 10 AUGUST 2014 J D Heydon Lord Neuberger’s paper deals with its subject in admirable style. It is certainly learned. But it is also dashing. This is no surprise. The hand which wrote the paper can also be seen in the joint judgment of seven members of the Supreme Court of the United Kingdom in FHR European Ventures LLP v Cedar Capital Partners LLC.1 In that case the Supreme Court favoured the view of the lamented Lord Templeman in Attorney General for Hong Kong v Reid2 over its rivals. The judgment in the FHR European Ventures case is notable for three things at least. First, it dealt in a deft and scholarly way with a topic which has been controversial, sometimes bitterly controversial, for at least 150 years: whether a fiduciary who has taken a bribe is liable to the principal only as an equitable debtor or can be liable to restore the bribe or its proceeds in specie under a constructive trust. Secondly, the judgment was written in a style – brisk, brief and brilliant – quite beyond the powers of most Australian judges. Thirdly, despite the importance _______________________ 1 [2014] UKSC 45. 2 [1994] 1 AC 324. 2. and complexity of the issue and despite the fact that it was argued over three days, judgment was delivered less than four weeks after the close of argument. These are achievements which ought to make most Australian judges hang their heads in shame, though there have been exceptions to these strictures.
    [Show full text]
  • Yours, Mine, Or Ours? Charting a Course Through Equity's
    Yours, Mine, or Ours? Charting a Course Through Equity’s Determination of Domestic Proprietary Interests Kathrine Galloway ORCID: 0000-0002-8047-1210 Submitted in total fulfilment of the requirements for an award of Doctor of Philosophy Submitted 24 March 2017 Melbourne Law School ABSTRACT Distributing proprietary interests between domestic heterosexual partners remains the purview of the courts of equity, using the trust. In answering the question: ‘Whose property is this?’ the courts are faced with the tension between a property law system designed for the market, and property claims arising from within a couple’s intimate lives. The law’s market orientation favours the party best able to explain their claim in market terms. Because of the gendered structures of society and the family, the process tends to favour the man. This prompts the question central to this thesis: Does equity have the capacity to determine domestic proprietary interests consistent with equality between men and women intimate partners in light of pervasive gender inequality? Existing analysis of intimate partner trusts predominantly suggests new redistributive mechanisms to resolve the problem of equality. Other work describes the law’s evolution towards more ‘familial’ approaches as ameliorating the unfairness of market norms applied to intimate relationships. This thesis adds to the literature by using relational theory to focus instead on equity’s existing property-based distributive framework, charting a course through the tensions inherent in the application of market principles to the intimate context. The tensions of individual and community, market and home, arise from the tenets of liberalism built into private law.
    [Show full text]
  • A Comparative Study of English and Australian Constructive Trusts
    Denning Law Journal 2020 Vol 32 p 151-173 BENEFICIAL OWNERSHIP OF THE FAMILY HOME: A COMPARATIVE STUDY OF ENGLISH AND AUSTRALIAN CONSTRUCTIVE TRUSTS Mark Pawlowski * James Brown** ABSTRACT The aim of this article is to review and critically analyse the English law relating to common intention constructive trusts in the context of the family home. In particular, it seeks to show how the English courts have addressed the question of establishing and quantifying the parties’ beneficial shares in both sole and joint ownership cases. The writers also seek to compare the English approach with the way in which such ques- tions have been answered by the Australian courts. The primary purpose of this comparison is to consider what lessons (if any) can be learnt from the Australian model. Key words: family home, constructive trust, beneficial ownership, common intention, presumption of equality, single regime, composite enquiry INTRODUCTION Much of English law regarding the imposition of a constructive trust in relation to the family home has developed in the context of sole ownership cases where legal title to the property is vested in one of the parties. In these cases, considerable confu- sion has persisted amongst the judiciary regarding the correct test to be applied in establishing beneficial entitlement (the acquisition question) and the method by which such entitlement should be assessed (the quantification question). In terms of acquiring a beneficial share, the House of Lords, in two landmark cases1 decided in the early 1970s, clarified the previous law by adopting a test based on common intention and detrimental reliance. These cases have provided the foundations for determining beneficial entitlement in single ownership cases under English law.
    [Show full text]
  • Yours, Mine, Or Ours? Charting a Course Through Equity’S Determination of Domestic Proprietary Interests
    Yours, Mine, or Ours? Charting a Course Through Equity’s Determination of Domestic Proprietary Interests Kathrine Galloway ORCID: 0000-0002-8047-1210 Submitted in total fulfilment of the requirements for an award of Doctor of Philosophy Submitted 24 March 2017 Melbourne Law School ABSTRACT Distributing proprietary interests between domestic heterosexual partners remains the purview of the courts of equity, using the trust. In answering the question: ‘Whose property is this?’ the courts are faced with the tension between a property law system designed for the market, and property claims arising from within a couple’s intimate lives. The law’s market orientation favours the party best able to explain their claim in market terms. Because of the gendered structures of society and the family, the process tends to favour the man. This prompts the question central to this thesis: Does equity have the capacity to determine domestic proprietary interests consistent with equality between men and women intimate partners in light of pervasive gender inequality? Existing analysis of intimate partner trusts predominantly suggests new redistributive mechanisms to resolve the problem of equality. Other work describes the law’s evolution towards more ‘familial’ approaches as ameliorating the unfairness of market norms applied to intimate relationships. This thesis adds to the literature by using relational theory to focus instead on equity’s existing property-based distributive framework, charting a course through the tensions inherent in the application of market principles to the intimate context. The tensions of individual and community, market and home, arise from the tenets of liberalism built into private law.
    [Show full text]
  • Read Book Constructive and Resulting Trusts
    CONSTRUCTIVE AND RESULTING TRUSTS PDF, EPUB, EBOOK Charles Mitchell | 392 pages | 03 Mar 2010 | Bloomsbury Publishing PLC | 9781841139272 | English | Oxford, United Kingdom Constructive and Resulting Trusts PDF Book For example, when A transfers property to B, unless the transfer was made by father to child or by husband to wife, in the absence of any other evidence the law presumes that a resulting trust has been created for A. Free Practical Law trial. Oddly, the law is unclear as to whether or not a resulting trust is created if a person, instead of buying real property , transfers property he or she owns to another. The twelve essays challenge our preconceived ideas of these trusts by suggesting — often radically — new perspectives on how we should analyse the law Downloads Download data is not yet available. Constructive trusts are imposed by the court as an equitable remedy where it would be unconscionable for the other party to hold onto the property. Benham 2 Ch. Understanding trusts 3. Chambers News. Search within this book Rather, the courts are using fiduciary duties as a method of punishing the defendant; Alastair Hudson writes that they are "as concerned to punish the wrongdoer as to protect rights in property". A former solicitor, Nicola is also a fully qualified journalist. I am trying to establish the difference between a resulting trust and a constructive trust in the context of it arising and creating a beneficial interest in a property. A constructive trust normally gives a proprietary right to the beneficiary that can be enforced on any other person.
    [Show full text]
  • Is Lloyds Bank V Rosset Still Good Law? Matthew Mills*
    Single Name Family Home Constructive Trusts: Is Lloyds Bank v Rosset Still Good Law? Matthew Mills* Beneficial interests; Constructive trusts; Family home Relationship breakdown: who gets what? The breakdown of a loving relationship can cause both emotional and legal uncertainties. From a property law perspective, the key question is: who gets what? In most cases, the most valuable part of this question is: who gets the house? In the divorce context, for both marriages and civil partnerships, the answer to this question is resolved by statute: the courts are explicitly given a wide discretion to require one person to transfer property to another, to hold it on trust for another, or to vary the shares of a pre-existing trust.1 However, the answer to the question “who gets what” is much less regulated where the parties were unmarried but cohabited prior to the breakdown of their relationship. For real property, the answer depends on whether both parties to the relationship were registered legal owners of the property (a “joint name case”) or whether only one party was registered as a legal owner (a “single name case”). In joint name cases, the law is settled by Stack v Dowden2 and Jones v Kernott.3 The starting presumption is that both parties are entitled to a 50% share of the value of the property as tenants in common, unless this presumption can be displaced by evidence of an express agreement to vary those shares or an agreement inferred from the parties’ conduct in relation to the property. If such an agreement can be proved, then the court must quantify the intended shares by reference to the express or inferred agreement or, in the absence of any evidence as to the size of those shares, by reference to what “the court considers fair having regard to the whole course of dealing between them in relation to the property”.
    [Show full text]