Acquisition of Beneficial Interests in Family Property

what is Goodman v Gallant authority for?

the doctrine of constructive trusts cannot be used to contradict and expressly declared trust

what are the facts of Goodman v Gallant?

the claimant and her husband were joint beneficial tenants in their home. the claimant and defendant together bought the claimant’s husband’s interest, with the conveyance declaring that they held the property “upon trust for themselves as joint tenants”. the claimant issued a notice to sever her share and sought a declaration that she held a ¾ interest in the house. CA held that the parties were JTs and the sale proceeds were held in equal shares.

what are the key points of Stack v Dowden?

• laid down doctrine of common intention constructive trust, which applies over the property of unmarried couples

• the distribution of beneficial interest under the CICT is fixed by the common intention of the parties as inferred from a range of circumstances as laid out at [69]

what are the facts of Stack v Dowden?

Stack (C) and Dowden (D) had their home in joint names. they were unmarried but cohabited with their children. C and D had contributed unequally to the purchase price of the home, with D contributing 65%. C and D separated and C left the property. C sought an order for sale of the house and equal division of proceeds amongst him and D. HL held that the property was held beneficially in unequal shares. the presumption that where there is a JT in law there is a JT in equity was rebutted by the fact that the couple kept their finances completely separate, as this indicates that the parties had not intended their shares in the property to be equal.

what is the key point of Jones v Kernott?

under a CICT, if it is impossible to infer any actual intention as to the parties’ respective shares, their intention will be imputed by fairness according to their course of conduct.

what are the facts of Jones v Kernott?

C and D were an unmarried couple cohabiting a property they bought in their joint names. they later separated and C remained in the house with the children. they agreed to cash in the life insurance policy they both contributed to and share the proceeds, with D using his proceeds to put doen the deposit to purchase a home fo himself. C claimed she owned the entire beneficial interest in the property, while D sought to sever the JT.

what did the SC hold in Jones v Kernott?

the parties owned the property in unequal shares, with C holding 90% and D 10%

In Jones v Kernott, it was held that where a couple buys a place for cohabitation in joint names without an express declaration of their beneficial interests, the presumption is that ________________________________________

equity follows the law and they are JTs in equity

In Jones v Kernott, what was held to be able to displace the presumption that a couple who buys a place for cohabitation in joint names without an express declaration of their beneficial interests are JTs in law AND equity?

• if the parties had a different common intention at the time when they acquired the home

• if they had later formed a common intention that their respective shares would change

in Jones v Kernott, what did Lord Walker and Baroness Hale hold are the rationales for the presumption of a beneficial JT (as opposed to ‘equity following the law’)?

1. if a couple in an intimate relationship purchase a house together, that is a strong indication of emotional and economic commitment to a joint enterprise

2. in a trusting personal relationship, the parties do not hold each other to account financially

In Jones v Kernott, what was it held that the court will do where the presumption of beneficial JT is displaced but it is not possible to ascertain what their actual intention was as to the shares in which they would own the property"?

the court will decide what is fair having regard to the whole course of dealings between them in relation to the property

when the family home is in the name of one party only, is there a presumption of joint beneficial interest?

No - what the other party’ interest is is to be answered based on the parties’ common intention deduced from conduct. if there is no common intention, the court will determine what is fair according to the whole course of conduct (Jones v Kernott)

what was decided in Geary v Rankine?

it is an impermissable leap to go from a common intention that the parties would run a business together to a conclusion that it was their common intention that the property in which the business was run, and which was bought entirely with the money provided by one of them, would belong to both of them

what was the key point in Marr v Collie?

the CICT can apply beyond the context of family homes to investment property bought jointly by a cohabiting couple

what are the facts of Marr v Collie?

C and D bought various properties as investments in joint legal names, although C contributed almost all of the purchase price. when their relationship ended, C argued that he owned sole beneficial interest in the properties upon presumed resulting trust. the Bahamas CA held that the presumed resulting trust was rebutted due to clear evidence at the time of the purchase that C had intended D to have an equal share in the properties.

what did the Privy Council hold in Marr v Collie?

the intention of the parties was not sufficiently examined by the judge, thus the matter should be remitted for a judge to redetermine.

does the CICT only apply in the domestic consumer context?

No (Lord Kerr, Marr v Collie)

what was held in Graham-York v York?

the court is not concerned with redistributive justice - it is irrelevant that it may be thought a “fair” outcome for a woman who has endured years of abusive conduct by her partner to be allotted a substantial interest in his property on his death. Miss Graham-York was only entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property

why does Douglas argue that in many situations the current law produces an unjust outcome in relation to cohabitants?

the law fails to recognise unjust enrichment of one of the partners at the other’s expense

what does Hayward state is the key criticism of Stack v Dowden?

the discretionary nature of the judicial exercise instigated by the recognition of ‘context’

what does Hayward argue is the key criticism of Jones v Kernott?

the sanctioning of ‘fairness’

why does Hayward counter the criticisms of Stack and Jones about their engagement with ‘context’ and ‘fairness’?

the more discretionary approach may more sensitively engage with relationship dynamics and litigants may benefit from the application of a more family-centric type of judicial analysis

who challenges comments that common law rules about unmarried couples’ property rights are uncertain, and (or but) that these rules yield an unfair result?

Gardner

what are the [69] factors that may be taken into account when determining the parties’ intentions?

• discussions at the time of transfer

• the reasons why the home was acquired in their joint names

• the purpose for which the home was acquired

• nature of the parties relationship

• whether they had children for whom they both had responsibility to provide a home

• how the parties arranged their finances

what did Kerr J suggest in Hudson v Hathway?

that detrimental reliance is no longer needed

is detrimental reliance necessary in these cases?

yes (Curran v Collins)

what did Lewison LJ argue in Hudson v Hathway?

detrimental reliance IS needed

what is Davis v Jackson authority for in relation to ‘exclusion’ or ‘restriction’ under s.13(6) TOLATA?

there has to be some conduct by the occupying party that excludes the other party from occupation. something other is required than just making the environment uncomfortable.

According to Davis v Jackson, a person who must pay occupation rent can offset said rent by making mortgage repayments, BUT ONLY IF -

they have improved the value of the house

what cases illustrate that family homes law can be applied to those who are not a family?

• marr v collie

• laskar v laskar

what is a good thing about the law governing co-ownership of family homes?

very much based on the parties’ intentions - CICT analysis (also the fact that common intention cannot be imputed shows this)

Marr v Collie: outside the family homes context, parties’ intentions are used to determine whether a resulting trust solution should apply - this ____________________________________________________

achieves a fair outcome in individual cases

what does Miles argue in relation to legal certainty in this area of the law?

• difficult to predict when a genuine but tacit common intention will be found when this is done by reference to the parties ‘whole course of conduct in relation to the property’

• lady Hale’s [69] factors is a non-exhaustive list - not actually that helpful

what does Gardner argue in relation to legal certainty?

should not prioritise certainty over veracity

• to require specific forms of evidence would sacrifice Cs who could show a genuine common intention based on looser material

Gardner + Davidson: where the parties’ relationship is ‘materially communal’, their shares should __________________________________

be fixed by reference to their (direct or indirect) contributions

• this prevents unjust enrichment

(BUT it has been argued that this goes against the focus on common intention)

Rostill argues that the starting point _______________________________________

even in family homes cases, should be a presumption of TICs in equity

Briggs: survivorship often seems so odd an incident of equitable ownership that ____________________________________________________________

unless a conveyance invokes it in express words, a better starting point would be that co-ownership in equity will be in common and in such equal or unequal SHARES as results from the reasoning in Jones v Kernott

although Hale’s reform in Stack v Dowden was seen as feminist, we could have the opposite viewpoint that: ________________________________________________

the presumption of JTs in ownership is not actually very feminist because it presumes that, should the woman die, she wants survivorship to follow which would mean everything automatically goes to her male partner

what was held in Laskar v Laskar?

the reasoning in Stack v Dowden would not be appropriate to apply because the parties, despite having a familial relationship, purchased the home primarily as an investment

what does the Matrimonial Causes Act 1973 do?

allows the Court to exercise its discretion when a couple divorces and to thereby reallocate the assets of the parties

(no such legislation applies on the breakdown of a relationship between unmarried cohabitants)

what policy considerations did Etherton LJ argue in Corssco No 4 v Unlimited Jolan drive the law in this area?

unmarried cohabitants do not normally take legal advice about, or expect to reduce to a formal or even written agreement, their mutual property rights + interests in the family home

what did Lord Neuberger hold in Laskar v Laskar?

the family homes rules apply to ‘other personal relationships’ (not just cohabiting couples)

how did Marr v Collie go against Laskar v Laskar?

held that no reason why Stack v Dowden would not apply to investment purposes

is Marr v Collie binding?

no

• only binding in the Bahamas

what type of trust was applied in Laskar v Laskar?

resulting (not constructive)

facts of Lloyds Bank v Rosset?

• a house was bought by a man in his sole name for the purpose of cohabiting with his partner, D

• the man took out a mortgage on the house with bank C

• C made no financial contribution to either the purchase or refurbishment of the property

• C bank claimed possession and an order for sale after the man defaulted

• D argued that she had a beneficial interest in the property that was overriding

what was held in Lloyds Bank v Rosset?

the wife did NOT have an overriding beneficial interest in the property

• neither a common intention that the house is to be renovated as a ‘joint venture’ nor a common intention that the house is to be shared by parents and children as the family home throws any light on the partners’ intentions with respect to the beneficial ownership of the property

key point of Lloyds Bank v Rosset?

shows the narrow approach to deducing common intention that focuses solely on financial contributions prior to Stack v Dowden

what is the difference between a materially communal and materially non-communal rel (Gardner v Davidson)?

materially communal: where C and D pool all their material resources across the board

materially non-communal: C and D do NOT pool their material resources across the board

what did Lord Neuberger hold in Laskar v Laskar?

the rules (in relation to family homes) were ‘intended to apply to other personal relationships, at least where the property is purchased as a home for 2 or more people who are the legal owners’

what was held in Gallarotti v Sebastianelli?

the principles to be applied to a constructive trust were the same whether the parties were in a relationship such as that of husband and wife or were business associates, though the court might draw different inferences as to their conduct in the latter case

• in light of the close relationship between the parties when the flat was purchased, the analysis to be carried out is to be seen more in the domestic than in the commercial context

what was held in Laskar in Laskar in relation to the scope of family homes law?

• by no means clear that the approach laid down by Baroness Hale in Stack was intended to apply in a case such as this

• in this case, although the parties were mother and daughter and not in that sense in an arm’s length commercial relationship, they had independent lives and the purchase of the property was not really for the purpose of providing a home for them

• the daughter hardly lived there at the time it was purchased, and did not live there much if at all afterwards

• the property was purchased primarily as an investment

what was held in Williams v Williams?

the context of this case was v different to stack and jones -

• the land is a farm

• it did provide a home for Mrs + Mr W and their family, BUT IT WAS ALSO, AND PRIMARILY, A BUSINESS WHICH PROVIDED THEIR LIVELIHOOD

What was held in Marr v Collie in relation to Laskar v Laskar?

Laskar’s case is NOT authority for the proposition that the principle in Stack v Dowden (that a conveyance into joint names indicates legal + beneficial JT unless the contrary is proved) applies only in the ‘domestic consumer context’

• Lord Neuberger did NOT intend to draw a strict line of demarcation between the purchase of a family home and the acquisition of an investment property