Chapter 6 The Family Home Flashcards
The court cannot give the parties an intention that did not exist. If the intention was not expressly held by the parties, the court may be able to infer it from the circumstances of the case even though the parties have never actually discussed it.
For payment of household expenses to be enough to count as detrimental reliance, the payments must be substantial.
Gissing v Gissing (1971)
The family home was in joint names. The HOL found that there was a common intention that the property should not be shared equally even though it was in joint names. As there was no express agreement about the size of the beneficial interests, it went on to consider the parties’ conduct in relation to the property to establish what shares they had intended.
Stack v Dowden (2007)
Sets out important guidelines about the creation of constructive trusts. In this case, the HOL found that a distinction had to be made between:
• Cases where there was an agreement between the parties to share the property – where there was express common intention to share; and
• Cases where there was no express common intention to share.
Lloyds Bank v Rossett (1990)
The woman had clearly been led to believe by the man that, when they set up home together, the house would belong to them jointly. The woman was going through a divorce at the time. The man had told the woman that the title could not be put in joint names because it would prejudice the matrimonial proceedings. This was an express common intention to share the property.
Grant v Edwards (1986)
Where T was the sole owner of the property in question before he met J. They cohabited for 15 years, during which time J helped out in T’s business, eventually becoming a partner. They have carried out extensive renovations on the property and T accepted that he had probably said that the improvements would benefit them both. The COA found that the judge was entitled to find that T’s assurances were insufficiently specific to give rise to a constructive trust.
James v Thomas (2008)
Mr B and Mrs F had a relationship for over 23 years, their house was in joint names funded by a deposit from Mr B and a joint mortgage, with no declaration of trust. Mr B paid the mortgage. Mr B said that the property had only been put in joint names so that they could inherit each other’s shares. The COA followed Stack and found that equity should follow the law so it was for Mr B to establish that the house was not held jointly beneficially as well as legally. In the absence of an express agreement, the court would consider the whole course of dealings of the parties in relation to the property to try and establish what the parties intentions had been. The court found that there was no shared intention for the property to be held other than equally as Mr B had never told Mrs F that he only wanted her to have the house if he died before her.
Fowler v Barron (2008)
The property was bought in 1985 and K moved out in 1993. J remained in the home with the two children of the relationship and made the mortgage payments from then on, while K bought another property. About 12 years after separation, K severed the joint tenancy and sought payment of his half share. J sought a declaration that she was the sole beneficial owner. At first instance, the judge decided that the parties’ intentions had changed and declared that the property was held beneficially 90% for J and 10% for K.
Jones v Kernott (2011)
The COA said that judges must first consider whether discussions at the time of the purchase show the sizes of the beneficial interests. If they do not (as in this case), it was said that the court must make a division that is “fair having regard to the whole course of dealing between them in relation to the property”, including the arrangements for paying outgoings. The man’s financial contribution was significantly greater that the woman’s, so the court found that it would be unfair to order an equal division. The woman received 40% based on her direct contributions coupled with the pooling of finances in relation to the outgoings during their relationship.
Oxley v Hiscock (2004)
The COA confirmed that if the parties have agreed what their beneficial entitlement will be, there is no need for the court to consider the whole course of dealings between the parties. This is only needed where there is no agreement between the parties about the nature and extent if their respective beneficial interests.
Crossley v Crossley (2006)
The property was in the woman’s sole name but the man had made a significant financial contribution. There had been no express discussions about whether the parties intended to share the property or the size of any shares. The judge was able to infer from the parties’ conduct, especially the financial contribution, that there was a common intention to share the property beneficially but could not infer from the course of dealings and imputed to the parties an intention to give the man a fair share amounting to 25%.
Aspden v Elvy (2012)
The COA clarified the approach to imputing intentions. The court stated that a two-stage analysis is needed.
1. The person claiming the beneficial interest must show that there was an agreement that they should have a beneficial interest. This may be inferred from conduct in an appropriate case. The claimant may also be able to show the extent of the share that is agreed.
2. If they can show an agreement to a beneficial interest but not the share agreed, the court may impute an intention that each person is entitled to the share that the court considers fair having regard to the whole course of dealings between them in relation to the property.
The court made clear that an intention cannot be imputed to the parties at stage 1.
Capehorn v Harris (2015)
