Family Homes

Question 1

In which context do disputes over the home arise commonly?

Answer 1

Sole owner legal title but another individual claims a beneficial interest in the property

Joint owners but no declaration as to the shares of beneficial ownership and claimed that parties are not beneficial joint tenants

Question 2

How can an express trust be declared for a family home?

Answer 2

Written evidence that satisfies s53(1)(b)

Question 3

What presumption is there about beneficial ownership from Stack v Dowden?

Answer 3

In absence of express declaration - beneficial ownership of the land mirrors the legal ownership.

Question 4

What kinds of trusts are used to determine beneficial ownership of a family home?

Answer 4

Common intention constructive trusts

Question 5

What was the significance of Stack v Dowden?

Answer 5

House of Lords indicated that a holistic approach should be adopted when determining legal ownership - not just based on purchase money

Question 6

What has Stack v Dowden established in terms of the presumptions and rebuttals needed for sole and joint legal ownership cases?

Answer 6

Starting point - beneficial title reflects legal title

Sole legal ownership - individual seeking to establish beneficial interest must show that there was a common intention that B should have a beneficial interest, and a detrimental reliance on that intention

Joint legal ownership - individual seeking to establish that they are NOT joint tenants needs to rebut the presumption with common intention and detrimental reliance

Question 7

Can intention change over the course of a relationship? How is it approached more widely?

Answer 7

Yes, if circumstances change

Court looks to the express or inferred intention based on the ‘whole course of conduct’

Question 8

How does the court approach quantification once common intention and detrimental reliance are established?

Answer 8

Express intention - court will affect this

No express - court will try to infer an intention based on the conduct of the parties

If cannot ascertain intention of parties - court can impute an intention for ‘fair shares’ based on all the ‘whole course of conduct

Question 9

If land is owned legally by more than one party, what is the initial presumption of the status of the legal and equitable title?

Answer 9

Legal title - can ONLY be held as a joint tenancy.

Equity follows the law - presumed that equitable title is also held as a joint tenancy

Question 10

What is the two step approach in joint legal ownership cases?

Answer 10

1) Rebut presumption: did the parties have a common intention to hold the property other than as joint tenants? Did claimant act to their detriment in reliance on that common intention?

2) Quantification: What proportions of tenancy in common?

Question 11

When would someone seeking to rebut the presumption of equitable joint tenancy argue for an equal share in tenancy in common?

Answer 11

In disputes about beneficial ownership of land when one of the legal joint owners has passed away.

Survivorship doesn’t operate for tenancy in common.

Question 12

What Stack factors may be considered by the court in analysing the ‘whole course of conduct’ to rebut the presumption of equitable joint tenancy?

Answer 12

Advice or discussions parties had

Why legal title was registered in their particular names

Purpose for which parties acquired the house

Nature of the relationship

Whether parties have children

How was house financed

How parties arranged other finances / divided responsibility for household expenses

Question 13

How has court approached the application of the Stack factors?

Answer 13

Presumption is not rebutted lightly

For party seeking to rebut presumption to find evidence - heavy burden requiring unusual facts.

Court looks for actual intention of parties - best evidence is express agreements / discussions.

Financial factors are the most important

Question 14

Why in Stack was the presumption rebutted?

Answer 14

Couple had kept their finances rigidly separate throughout 27 year relationship

Question 15

Are financial contributions alone enough to rebut presumption of joint tenancy?

Answer 15

No - in Fowler v Barron a man who had paid for everything was unable to rebut the presumption

Question 16

What significant things did Jones v Kernott establish?

Answer 16

Intention can change / be ambulatory

Presumption maybe could not be rebutted at time of acquisition but parties later formed a different common intention

Mr Kernott’s intention here crystallised when he moved out - stopped contributing to the mortgage and the parties divided the life assurance policy equally between them.

Question 17

When can imputation occur?

Answer 17

Only at the quantification stage - not when rebutting the presumption of joint tenancy

Question 18

What is the starting point if a legal title is held by one individual?

Answer 18

The equitable title is the same

Question 19

What principles are important to remember when considering express discussions that parties had about the property?

Answer 19

When assessing common intention - statements should be about shared ownership not merely about shared occupation.

Common intention to shared ownership can be evidenced by the legal owner providing an excuse as to why their partner is not jointly registered as the legal owner - but does depend on why the excuse was made

Question 20

How does the court apply the holistic approach to inferring common intention in sole legal ownership cases?

Answer 20

Stack has widened consideration of non-financial factors

But the court still takes a restrictive approach to inferring common intention

Substantial improvements which significantly add value to property could be capable of creating an interest

Question 21

How is detrimental reliance understood?

Answer 21

Has been considered conduct which is otherwise inexplicable - conduct upon which you could not be reasonably be expected to embark unless she was to have an interest in the house

Act done to your detriment relating to joint lives of parties

Question 22

Is proprietary estoppel a cause of action?

Answer 22

Yes - not just a defence unlike promissory estoppel

Question 23

What fact pattern is common for Proprietary Estoppel?

Answer 23

B assures A that they have or will acquire a right in relation to their property and in reliance on that assurance, A acts to their detriment.

Question 24

What are the three elements of a proprietary estoppel claim?

Answer 24

An assurance made to the claimant

Reliance by the claimant on the assurance

Detriment to the claimant in consequence of their reliance

Overarching theme: unconscionability

Question 25

What characteristics must the assurance have?

Answer 25

Must be an assurance that the claimant has or will acquire a right in property owned by the defendant - can't just be a general assurance about financial stability Need not be explicit - can be inferred from indirect statements Must be 'clear enough' but this is thoroughly context contingent

Question 26

How is 'reliance' understood in a PE claim?

Answer 26

There must be a sufficient link between defendant's assurance and the detrimental conduct Does not have to be the sole cause - just one cause is enough Defendant must prove that the claimant did not rely on the assurance - burden of proof is changed

Question 27

How is 'detriment' understood in a PE claim?

Answer 27

Approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances Can consider any benefits recieved Can be financial but also can be other decisions to detriment

Question 28

How is unconscionability understood?

Answer 28

Must 'shock the conscience of the court'

Question 29

What remedies can proprietary estoppel generate?

Answer 29

Transferring property Holding property on trust for claimant Claimant gets a property right Personal right Damages Remedy should never exceed the claimant's expectation Simplest remedy is to hold the promisor to the promise But justice must be done between the parties if more than one remedy - court should allow defendant to choose

Question 30

When would fulfilling the claimant's expectation not be an appropriate remedy?

Answer 30

D no longer owns the property D reneges on assurance a long time before it was due to be honoured Hardship to third parties Disproportionate Would involve enforced cohabitation.

Question 31

What statutory provisions apply to civil partnerships?

Answer 31

Specific family law statute says that the court has a statutory discretion to determine their respective beneficial interests because they are civil partners - so not based on case law

Question 32

if a trustee is of a trust of land, must they consult any beneficiaries in occupation before exercising discretion?

Answer 32

Ts must consult any beneficiary who is of full age and beneficially entitled to an interest in possession in the land and, so far as consistent with the ‘general interest of the trust’, give effect to the wishes of any such beneficiary can be excluded by trust instrument

Question 33

Give examples of when contributions towards a property would, versus would not, mean that a common intention trust could be imposed?

Answer 33

Yes: Direct contribution to purchase price, significant contribution to purchase price No: Ancillary payments like SDLT

Question 34

Does it matter at what time payments are made for common intention?

Answer 34

No - no need for them to be at the time of purchase, can be any time