Co-ownership Flashcards
Chan Pui Chun v Leung Kam Ho [2002] EWCA Civ 1075
FACTS:
- C (26) started working as a political assistant to L; L was under investigation for corruption in connection with a local government election
- C and L developed a relationship; marriage was discussed but plans had to be deferred
- L was charged was bribery and sentenced to three years in prison
- Intended to live together and set up a business together
HELD:
- She is a beneficiary under trust
JOHN PARKER LJ:
- One of the purpose of the trust of the house was to provide a home for C, should her relationship with L come to an end
- Issue is whether it is suitable for occupation by C within the meaning of section 12(1) of TOLATA
- No statutory definition or guidance as to what was unsuitable
- Must consider: the general nature and physical characteristics of a particular property and the personal characteristics, circumstances and requirements of the particular beneficiary
- This house is too large for her needs and too expensive for her to maintain; but as her occupation is only for a short period it is not unsuitable for her occupation within the meaning of section 12(1)
- It would take a lot of persuading to find a property occupied when a couple lived together is unsuitable for a person to live in alone
White v White [2000] UKHL 54
FACTS:
M (father) and D (mother) bought a property, funded by a joint deposit and joint mortgage. They became beneficial joint tenants. When their child was born they extended the house to provide a fourth bedroom; largely funded by remortgaging the property.
They separated and where unable to resolve their differences through agreement; the moth issued an application for orders under section 14 TOLATA.
She envisaged her future would be as primary carer for the two girls in the home; so sought an order deferring the realisation of the father’s half share until the last child was 18/ceased full time education. (She later changed her argument and sought sale)
HELD:
The “intentions” for the purposes of s.15(1)(a) were the intentions of all the persons who had created the trust: the intentions of the parties prior to the creation of the trust.
Clean break: the wife agreed not to get maintenance costs in return for a share in the home.
NOTE:
Both had legal aid, the case would not get this far now without changing regulations. Dispute resolution scheme available and should use that.
W v M [2012] EWHC 1679
Should proceedings under TOLATA be anonymized? Divorces are private, so why aren’t they for cohabitants? Courts are very unsympathetic as mediation and arbitration are private.
Parliament having separate matrimonial and civil partnership Acts must view them as separately; so it is for Parliament to decide whether to keep them discrete.
Carlton v Goodman [2002] EWCA Civ 545
Ward LJ emphasises the poor practice of conveyancers in not ensuring the beneficial interest is declared.
TOLATA 1996
Ss. 6, 11, 12, 14 and 15
Midland Bank v Cooke [1995] 2 FLR 995
FACTS:
House in C’s name; but couple married so wife has S has beneficial interest. Financed by wedding gift and mortgage paid for by his salary. Litigation against the bank; they argued her share was at most 6.47% due to her £1,100 contribution (resulting trust)
ASK:
A. Was there a gift by Mr Cooke’s parents to both spouses? Yes…
B. Is the proportion of S’s interest to be fixed solely by reference to the percentage of the purchase price which she contributed directly, making other conduct irrelevant? No…
C. Can an agreement be attributed by inference of law to parties who have expressly state that they reached no agreement? Maybe…
WAITE LJ:
General principle in G v G and G v E: in cases like the present, where the partner without legal title has successfully asserted an equitable interest through direct contribution, to determine the proportions the parties must be assumed to have intended for their beneficial ownership… the judge should survey the whole course of dealings between the parties relevant to their ownership and occupation of the property and their sharing of its burdens and advantages… should not be limited to direct contribution as needed to find beneficial interest in the first place… it will consider all conduct around intention
Lloyds Bank plc v Rosset [1990] UKHL 14
Lord Bridge, 2 tests:
- There is an “express common intention constructive trust” i.e. an agreement prior; however imprecise/poorly remembered… then there must be detrimental reliance ‘to give rise to constructive trust or PE’
- An ‘implied bargain CT’ where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a CT; in this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage installments, will readily justify the inference necessary to the creation of a CT… according to P v P and G v G it is doubtful anything less will do
Gardner (1993) LQr
- In E v E and G v E the court found express agreements that the woman should have a share in the house owner by her partner; this was the woman’s only hope as she had not made a direct contribution to discover an implied agreement
- However in both the woman was told she cannot have a share; these were labelled as “excuses” as they were bad reasons to refuse the woman a share in the house (being too young and that it would prejudice matrimonial proceedings)
- The fact that they are excuses is not acknowledging an agreement of the woman having a share - fallacious quality of the cases
Lawson (1996)
Decisions are grounded on stereotyped notions of behaviour
Oxley v Hiscock [2004] EWCA Civ 546
There is no difference in result of CT and PE on proper analysis on cases of this nature
Fairness?
Is the court getting a fair result or giving effect to the pre-existing rights of the parties?
Supply the parties’ common intention, rather than finding on the facts… is this incompatible with Lord Bridge’s clear requirements in Lloyds Bank v Rosset?
At first instance in K v J the judge thought it was a test of what is “fair and just” having regard to all the circumstances.
