CO-OWNERSHIP OF LAND, CONSTRUCTIVE TRUSTS AND A FEW OTHER THINGS.

CO-OWNERSHIP OF LAND, CONSTRUCTIVE TRUSTS AND A FEW OTHER THINGS. 1. Today I am talking about co-ownership of property. This is a huge topic, so I thought for a one-hour seminar I would cover only a few aspects of it. 2. First off - I want to give you an overview of where the law is on co-ownership of property and constructive trusts. This is basically determined by the House of Lords decision in Stack -v- Dowden, but I will also be going over a few post-stack v Dowden cases which cover what I think might be useful applications for you. I am not going to deal with proprietary estoppel today - simply due to lack of time. 3. Secondly - I want to touch on equitable accounting. 4. And finally - I want to go over the impact of bankruptcy and in particular how this meshes with property adjustment orders under the Matrimonial Causes Act. CO-OWNERSHIP & STACK -V- DOWDEN: 5. Stack -v- Dowden reminded us that there is a two stage process involved in all these cases: a. First - you have to work out whether or not there is shared beneficial ownership. b. Secondly - thereafter, you have to work out what the respective interests are. Do not confuse the two stages, even if the factors used in determining them can be the same. 6. There are basically three standard situations you are looking at here: a. Property purchased in sole name.

b. Property purchased in two (or more) names, with no declaration of trust. c. Property purchased in two (or more) names, with a written declaration of beneficial interests. 7. Logically, following the first see if there is shared ownership, then determine the shares rule, you might think you would take these situations in that order. However, for practical reasons I am going to take them in reverse order as easiest to most complicated. PROPERTY IN JOINT NAMES - DECLARATION OF TRUST: 8. The first one is really simple: The declaration of beneficial interests essentially trumps everything and determines those beneficial interests, subject to variation by subsequent agreement or if it is affected by proprietary estoppel; see Goodman -v- Gallant [1986] Fam 106, cited in Stack -v- Dowden at para 49. There is simply no room (at least, as at that date) for the doctrines of constructive trust or proprietary estoppel. 9. But it is worth noting what, precisely, counts as a declaration of beneficial interests: a. Obviously, any standard written declarations of trust. b. Any declarations in an unregistered conveyancing - e.g. Goodman -v- Gallant. c. Also, the post-1 st April 1998 TR1 s have a box for declarations of trust. But failure to fill it in will not invalidate the transfer, so sometimes even then they won t be filled in. 10. And what about the restriction on the register about survivors giving good receipt? The survivor can give a valid receipt for capital money arising on a disposition of the land Surely if a survivor can give good receipt, then it must have been a joint tenancy in equity as well as in law? For a while this looked like it gave the answer in a lot of cases. However, that idea was put to rest in a series of 2

cases, particularly Huntingford v Hobbs [1993] 1 FLR 736 and Harwood v Harwood [1991] 2 FLR 274. 11. Today a restriction on the register is only of very limited assistance, with two exceptions: a. First - where the reason for the restriction and its meaning were explained to or understood by the parties, it can have a significant impact. b. Secondly - sometimes the declaration is in a non-standard form. In re Gorman [1990] 2 FLR 284 the transfer contained a declaration stating that the transferees were entitled to the land for their own benefit and that the survivor of them could give a valid receipt for capital moneys arising on the disposition of the land. The entitled to the land for their own benefit was enough to allow this case to be distinguished in Harwood -v- Harwood and Huntingford -v- Hobbs. Basically, what might at first sight appear to be a restriction wording might, just, have a declaration of beneficial interests in it. PROPERTY IN JOINT NAMES - NO DECLARATION OF BENEFICIAL INTERESTS: 12. This is precisely the situation Stack -v- Dowden had to deal with. We now have a firm, albeit not uncriticised, conclusion on this situation: 13. First question - is there shared ownership at all? Answer: It is common ground that a conveyance into joint names is sufficient, at least in the vast majority of cases, to surmount the first hurdle. 14. So the real question for properties in joint names is - what are the shares? If you want to argue no beneficial shared ownership, you can think of that issue as can you prove a 0% share on one part?. 15. So the question is - what are the shares? Lady Hale summarised it as follows: 3

The search is to ascertain the parties shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it. Para 60. 16. Probably the most important single sentence in the entire judgment, as it summarises her position - which was followed by 3 other Law Lords. 17. We start the search with the presumption that if a property is purchased in joint names (in law) the equity will follow. In other words, equal shares. This presumption operates at least in the domestic consumer context, unless and until the contrary is proved ; para 58. It will be very unusual to move away from this. Two quotes worth noting: a. Para 68: A full examination of the facts is likely to involve disproportionate costs. In joint names cases it is also unlikely to lead to a different result unless the facts are very unusual. b. Para 69: At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual. Para 68 might be worth remembering when it comes to costs arguments - or threats of costs arguments in the future Basically the House of Lords are expressly discouraging this sort of argument on a costs basis. 18. So the burden is on the party who wants to show that the shares differ from this presumption. 19. Lady Hale has already pointed out that you can look at the whole course of conduct in relation to the parties shared intentions. So basically anything goes. If it looks like it might shed some light on their shared intentions then it goes in the pot. At paragraph 69 she gives examples of some such factors. Although this list is expressly non-exhaustive, it would be pretty sensible to start with them. She includes: a. any advice or discussions at the time of the transfer which cast light upon their intentions then; b. the reasons why the home was acquired in their joint names; 4

c. the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; d. the purpose for which the home was acquired; e. the nature of the parties relationship; f. whether they had children for whom they both had responsibility to provide a home; g. how the purchase was financed, both initially and subsequently; h. how the parties arranged their finances, whether separately or together or a bit of both; i. how they discharged the outgoings on the property and their other household expenses 20. And, of course, all of these will apply differently in different factual situations 21. Now here come the two problems I have with Lady Hale s characterisation of the issue. 22. First - a factual one. She says it will be very unusual to vary from the presumption of equality. In Stack -v- Dowden, a large deposit came from one party (or at least, overwhelmingly from the woman) whilst the shortfall was raised by a joint mortgage, where the interest was in turn paid for by the man. The capital repayments were made by both of them, with the woman repaying more than the man. There were children. They kept separate bank accounts. When they broke up he left the property, and she remained in it. At paragraph 92 Lady Hale concludes: This is, therefore, a very unusual case. There cannot be many unmarried couples who have lived together for as long as this, who have had four children together, and whose affairs have been kept as rigidly separate as this couple s affairs were kept. This is all strongly indicative that they did not intend their shares, even in the property which was put into both their names, to be equal (still less that they intended a beneficial joint tenancy with the right of survivorship should one of them die before it was severed). She concluded a 65/35 split was appropriate. 5

23. But in my experience this is not that unusual. The only relatively unusual thing is the separation of finances after 27 years, and even that is only relatively unusual. Maybe you all have a different experience, but I think Lady Hale just opened the door to lots of detailed arguments delving into the facts in a disproportionately expensive manner. Ho hum. Silver linings and all that. 24. That said, the courts are applying the strong presumption. A good example is Fowler -v- Barron [2008] EWCA Civ 377: a. Unmarried relationship for 23 years. b. They had children. c. 10 years in, they purchased a property in joint names. d. She made no contribution to purchase price, or mortgage, or utility bills, or council tax. e. She spent all her income on weekly shopping, day-to-day costs and their children. f. They made mutual wills in each others favour. g. HELD: 50/50. 25. My second problem, and I am not alone in this, is that she s just talking gibberish about imputing a shared intention, whilst denying that the court is [imposing] its own view of what is fair upon the situation in which the parties find themselves (at para 61). 26. Lord Neuberger hated this. He agreed in this case with the ultimate outcome, but he disagreed with Lady Hale on how you got there. He said, don t go along the imputed intention route. If there is no express or inferred intention, you have to rely on resulting trust principles, and only in the absence of any evidence of agreement or unequal contributions should you end up with a presumption of equality. 27. What does imputed mean? I have no idea. Recently we had a really powerful criticism of this sentence by Rimer LJ in Jones -v- Kernott [2010] EWCA Civ 578 [2010] 3 All ER 423 at para s 76-77. 6

At paragraph 76 he points out that inferred must mean actual then actual must mean expressed. Then at paragraph 77 he puts the boot in on imputed : As for Lady Hale's statement in [60] that the court must or can also look for the parties' imputed intention, I do not, with the greatest respect, understand what she meant. It is possible that she was using it as a synonym for inferred (cf such use by Lord Pearson in Gissing v Gissing [1970] 2 All ER 780 at 787 788, [1971] AC 886 at 902), in which case it adds nothing. If not, it is possible that she was suggesting that the facts in any case might enable the court to ascribe to the parties an intention that they neither expressed nor inferentially had: in other words, that the court can invent an intention for them. That, however, appears unlikely, since it is inconsistent with Lady Hale's repeated reference to the fact that the goal is to find the parties' intentions, which must mean their real intentions. Further, the court could and would presumably only consider so imputing an intention to them if it had drawn a blank in its search for an express or an inferred intention but wanted to impose upon the parties its own assessment of what would be a fair resolution of their differences. But Lady Hale's rejection of that as an option at [61] must logically exclude that explanation. In his dissenting speech, Lord Neuberger, at [125] to [127], advanced an apparently comprehensive demolition of the 'imputation' theory. I recognise that those paragraphs cannot be invoked as support for the view that Lady Hale's unexplained use of the word 'imputed' was not intended to mean what it might be read as meaning. But if she was using the word in its ordinary meaning, it is in my view also difficult to see how the imputing to the parties of a nonexistent intention can stand with her emphasis that the burden of rebutting the presumed joint beneficial interest is heavy and that only in very unusual cases will it be discharged. That is because, if the 'imputing' of an intention is open to trial judges, they could in principle do it in every case in which an assessment of the relevant history reflects an unequal contribution to the purchase. I accordingly do not myself interpret Stack v Dowden as having intended to enable courts to find, by way of the imputation route, an intention where none was expressly uttered nor inferentially formed. 28. Jacob LJ however, dissenting, put the counterargument quite succinctly: a. Lady Hale was supported by 3 other Law Lords. b. Lord Neuberger s dissenting opinion is albeit powerfully reasoned, not the law. With great respect, although it may be an appeal to future lawmakers or to the Supreme Court to reconsider Stack v Dowden, it is otherwise no more than a cry in the wilderness. It does not help those 7

who have to solve that sort of problem under the current law. Para 89. 29. So whilst I may not like the intellectual justification behind all this, Jacob LJ has the point that you have to just get on and apply Stack -v- Dowden. At least until it is overturned by the Supreme Court. Non-domestic joint property: 30. So all that is fine for matrimonial / quasi-matrimonial domestic property. What about non-domestic property? Here, at least, we see some claw back by Neuberger. 31. In Stack -v- Dowden Lady Hale repeatedly emphasised that she was talking primarily about domestic property arrangements, and at paragraph 32 Lord Walker said: The doctrine of a resulting trust (as understood by some scholars) may still have a useful function in cases where two people have lived and worked together in what has amounted to both an emotional and a commercial partnership. 32. Bingo. Neuberger jumped on this in Laskar -v- Laskar [2008] EWCA Civ 347. In that case: a. A mother and daughter financed and purchased a property together, with the daughter contributing around 4% of the purchase price downpayment, with a joint mortgage. b. The property was registered in both their names. c. The property was rented out. All expenses were paid out of the rent. d. Both parties had separate and distinct lives and maintained separate finances. e. The parties fell out and the daughter sought to realise her interest in the property. f. HELD (CA): Because investment property, Stack -v- Dowden does not apply, so resulting trust principles still hold sway! (And if Stack -v- 8

Dowden did apply, then rebutted presumption anyway - so it s unappealable ) g. BUT ALSO HELD (CA): Where mortgage paid out of rent, take that into account, so she gets 33%, not 4%. 33. I think Laskar -v- Laskar could well be found to apply to husband and wife investment properties. PROPERTY IN SOLE NAME: 34. Stack -v- Dowden does not actually say much about sole ownership cases, at least directly. What it does say amounts to this: a. You still have to perform the two-stage analysis of is there joint beneficial ownership? and if so then ask what are the shares? b. Again, there is a presumption that the beneficial interests follow the legal title, so the presumption is sole beneficial ownership. Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all ; para 56. c. Where there have been contributions towards the purchase price, then this first hurdle can be readily surmounted; para 61. d. Once you get to the second stage - quantification - then it looks likely that the approach will be pretty similar if not identical to joint names cases. The statement on this is a bit uncertain: The approach to quantification in cases where the home is conveyed into joint names should certainly be no stricter than the approach to quantification in cases where it has been conveyed into the name of one only. para 65. e. However, I fail to see how you could have a significantly different approach. Possibly one might interpret the different factors in a different light given the sole legal title, but I suspect that this would prove to be significant in and of itself extremely rarely. 9

35. What I found quite odd, however, was that the case almost entirely ignores the traditional questions of detriment and reliance. I think that this is because it was dealing almost entirely with the second question - quantification of interests - and the detriment and reliance issues probably only go to the first, at least in questions of constructive trusts. For example, see Sir Nicholas Browne-Wilkinson VC s judgment in Grant -v- Edwards [1986] Ch 638 at 654C, where he said: Once it has been established that the parties had a common intention that both should have a beneficial interest and that the claimant has acted to his detriment, the question may still remain what is the extent of the claimant's beneficial interest? This last section of Lord Diplock's speech [in Gissing -v- Gissing] shows that here again the direct and indirect contributions made by the parties to the cost of acquisition may be crucially important. 36. In fact, only Lords Walker and Neuberger even use the word detriment in all the speeches, and then only once each - and Lord Walker was quoting Lord Diplock in Gissing -v- Gissing. But I think that this does nothing to diminish the emphasis in the authorities on the necessity for some sort of detriment on the part of the person claiming an interest in property held by another before there will be a constructive trust imposed. I think therefore that the really interesting thing to be seen in years to come will be whether the lower courts take a more broad interpretation of Stack -v- Dowden and start saying the owner s conscience can be bitten on in the absence of detriment to the claimant - you just have to look at the relationship in the round. I think they should not do so, but I can see it theoretically happening. I think it is unlikely particularly given some of the recent cases on proprietary estoppel. PROPRIETARY ESTOPPEL: 37. As I have said, I simply do not have time to deal with proprietary estoppel as well today. All I would note is three things: a. First - everybody is veering away from the idea that constructive trusts and proprietary estoppel are converging. There is now an emphasis on the point that constructive trusts essentially deal with the question of 10

who is the true owner. Proprietary estoppel gives rise to a mere equity, which might be satisfied by a monetary award; see Lord Walker in Stack -v- Dowden at para 37. In Thorner -v- Major Lord Scott went so far as to suggest that proprietary estoppel was better suited for immediate interests, whilst constructive trusts were better suited for future interests, although I personally disagree with him and the other Law Lords ignored him on that point. b. Secondly - you still (basically) have to have representation, detriment and (reasonable) reliance; see Lord Walker in Thorner -v- Major at para 29 and Lord Scott at para 15. Even with the distinction between constructive trusts and proprietary estoppel, I think this reemphasises the necessity for detriment and reasonable reliance in order to bite on an owner s conscience. And if it is necessary in proprietary estoppel cases, why not in constructive trust cases? Form over substance if there is a difference. c. Thirdly - there is a significant difference in practice between commercial and domestic situations. This is not a legal difference, but one of fact. It is simply less likely that it will be reasonable to rely on representations or assurances in commercial life in the absence of a formal agreement; see Cobbe -v- Yeoman s Row Management Ltd [2008] UKHL 55 compared with Thorner -v- Major [2009] 1 WLR 776. d. Fourthly - this emphasises the point in Thorner -v- Major that, at least in a domestic situation, what is needed by way of representation can be pretty wide, and need not meet the old clear and unequivocal test. As Walker pointed out at para 56: I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context. 11

LAST BIT ON CO-OWNERSHIP OF PROPERTY AND MARRIED COUPLES: 38. One last point I thought worth mentioning is a case in the Privy Council which gives some guidance on how to deal with gifts to married couples? In Abbott -v- Abbott [2008] 1 FLR 1451 the Privy Council (Lady Hale again) basically reiterated Stack -v- Dowden (this time for the benefit of Antigua) and at the same time pointed out that in England where a parent gives newly weds financial assistance to acquire a matrimonial home the usual inference is that it was intended as a gift to both of them. 39. For a woman who decries the use of presumed resulting trust on unequal contributions to purchase price, she seems pretty happy with the use of presumptions generally. EQUITABLE ACCOUNTING: 40. Equitable accounting is the use of the proceeds of sale of jointly owned property to meet certain personal obligations that have arisen between the owners - Equitable Accounting, The Conveyancer, (1995) page 391, Elizabeth Cooke. 41. PLEASE NOTE - this article is (in my opinion) the single best source of information on equitable accounting. It may be slightly out of date, but it is invaluable if you want to actually understand this doctrine. 42. Basically, when you sell a jointly owned property the court often has to deal not only with questions of strict ownership but also various personal crossclaims between the owners. These tend to arise out of a number of issues: a. One party paying the other s mortgage obligations; b. One party being excluded from occupation by the other; c. One party paying for works of improvement or maintenance, and demanding a contribution from the other. 12

43. The first gives rise to a common law claim for contribution or indemnity. The second gave rise to a claim in damages. The third gives rise to a restitutionary claim for unjust enrichment. Obviously it is more sensible to deal with them by way of credits and debits to the proceeds of sale. 44. The way the courts dealt with them in the past was through the application of equitable accounting, which is a glamorous way of describing a set of rules of thumb which glossed over strict legal rights in the interests of rough and ready justice. For example: a. 2 owners, joint mortgage, both equally liable for it. b. 1 owner (X) excludes the other (Y) from the property whilst paying the entirety of the mortgage. c. Usually X is credited with the capital payments on behalf of Y, but not the interest payments. They were set off against occupation rent, which is a really poor way of referring to compensation for exclusion. It is a really poor phrase because it is not rent, as X is entitled to occupy the property, and it is not for X s occupation, but rather Y s exclusion. 45. In Stack -v- Dowden Lord Neuberger pointed out at paragraphs 93-94 that all those occupation rent issues were now dealt with under TLATA ss.12-15. These statutory powers replaced the old doctrines of equitable accounting under which a beneficiary who remained in occupation might be required to pay an occupation rent to a beneficiary who was excluded from the property. The criteria laid down in the statute should be applied, rather than in the cases decided under the old law, although the results may often be the same. 46. So equitable accounting is out, at least officially, for occupation rent. But Lord Neuberger said nothing about the other sources of equitable accounting, so I think that they must remain extant. 47. This appears to be the position taken by the courts, as in French v Barcham [2008] EWHC 1505 (Ch). In that case a trustee in bankruptcy claimed, effectively, occupation rent. The DJ held that since a trustee in bankruptcy is 13

not entitled to occupy a property under TLATA s.12, then no compensation can be paid under s.13(6), so no occupation rent is due. Blackburn J disagreed. He pointed out that because the trustee in bankruptcy had no right to occupy under s.12, then he was outside the statutory scheme and therefore the old law applied. 48. Finally on equitable accounting I would point out one rather peculiar facet which is worth remembering: a. Usually one co-owner paying for or performing work which improve or maintain the value of the property is entitled to credit against the other to the lesser of a pro rata share of the costs of the works, and a pro rata share of the increase in value of the property. b. The position can be different for married couples. Under Matrimonial Proceedings & Property Act 1970 s.37 where a spouse makes a contribution of a substantial nature in money or moneys worth to the improvement of property in which the other spouse has an interest, then the court may treat them as having acquired a share of an enlarged share as may seem in all the circumstances just to [the] court. c. And finally, that rule applies on the termination of an engagement to any property held by the engaged couple during their engagement; Law Reform (Miscellaneous Provisions) Act 1970 s.2(1). (NB: For married, read married / civil partnership, and the engagement point applies too - see Civil Partnership Act 2004 s.74.) INSOLVENCY & CO-OWNERSHIP IN MATRIMONIAL CASES: 49. Insolvency and co-ownership is a topic in itself. The really important points to note are as follows: a. If the trustee in bankruptcy seeks possession in the first year after the bankruptcy order then the court will consider the interests of the creditors, the needs and resources of the (ex-)spouse and children, the actions of the bankrupt in contributing the bankruptcy and all the 14

circumstances of the case other than the needs of the bankrupt ; IA 1986 s.336(4). b. If the trustee in bankruptcy waits for a year, then unless the circumstances are exceptional the interests of the creditors outweigh all other considerations ; IA 1986 s.336(5). So in practice, trustees wait for a year. c. If the bankrupt transferred property to third parties in the years leading up to their bankruptcy then those transfers can be challenged as being transactions at an undervalue (IA 1986 s.339) or preferences (IA 1986 s.340). d. The transfer has to be within the relevant time, which in the case of transfers at an undervalue is 5 years; IA 1986 s.341. e. In order to set aside a transaction at an undervalue it has to be at an undervalue (duh). More importantly for today s purposes no order will be made if the person received the property in good faith and for value ; IA 1986 s.342(2)(b). Unfortunately for spouses, they are presumed to be not in good faith (for this purpose) unless the contrary is shown; IA 1986 s.342(3). f. Finally, any disposition of property between the presentation of a bankruptcy petition and the bankruptcy order being made is void unless ratified by the court; IA 1986 s.284. 50. So what happens when a couple is divorcing, there are ancillary relief proceedings on foot, and it becomes apparent that one of them may be made bankrupt? Here is my summary of the law: a. Any settlement or property adjustment order made after the presentation of a bankruptcy petition will be void unless ratified by the court; re Flint [1993] Ch 319. b. A Xydhias agreement made prior to the presentation of the petition, but completed after its presentation, is still void unless ratified by the court; Warwick (nee Yarwood) -v- Trustee in Bankruptcy of Yarwood [2010] EWHC 2272 (Ch). c. A settlement made (and completed) prior to the presentation of a petition is clearly open to challenge as a transaction at an undervalue, 15

although apparently not as a preference; re Jones, Ball -v- Jones (2008) FLR 1969. d. A property adjustment order made prior to the presentation of a petition is definitely open to challenge as a preference; IA 1986 s.340(6). It also appears that it is open to challenge as a transaction at an undervalue; Hill -v- Haines [2007] EWCA Civ 1284. e. However, a spouse gives consideration or value for the property adjustment order as their ability to apply for an order under MCA 1973 s.23 is a right with value, which constitutes consideration; Hill -v- Haines. f. In general an ancillary relief order will only be overturned as a transaction at an undervalue if there is evidence of fraud, mistake or misrepresentation, but in general not otherwise. This is because it would be contrary to Parliament s intentions if every such order was open to challenge, and it would encourage spouses unhappy with the outcome to petition for their own bankruptcy in order to overturn the order; Hill -v- Haines. FENNER MOERAN Autumn 2010 16