Cohabitation 1&2

Question 1

Introduction- what does the court have limited on a cohab relationship?

Answer 1

Unlike a marriage/CP breakdown, a court has limited powers on the breakdown of a cohabiting relationship

Question 2

INTRO-what does property law decide?

Answer 2

Property law decides who owns what

Question 3

INTRO- what about social policy considerations for cohabitees?

Answer 3

-Social policy considerations for those choosing not to marry (no such thing as ‘common law’ spouse)- element of fairness gone- courts reluc to give cohab same powers as maried

Question 4

INTRO- what do disputes in cohabitees normally involve?

Answer 4

Disputes normally involve the home

Question 5

INTRO- what happened in Gissing?

Answer 5

Gissing v Gissing [1971]

- no special rules where the family home is in issue
- focus is on who has the beneficial interest and in what shares?

Question 6

INTRO- what may cohabitees have in land?

Answer 6

Fundamentall problem is sometimes Land may be held on trust for another (express or implied) or they may have a claim in proprietary estoppel

Question 7

Starting Point: Who has the legal title to the family home?

Answer 7

Starting Point: Who has the legal title to the family home?- need to ask this q in exam as

Question 8

What is the 1st thing to consider in starting point?

Answer 8

• Registered land (land registry) / unregistered land (title deeds)-land divided into reg and non reg- so need to look into land reg or title deeds to find out who owns it

Question 9

-What is the 2nd thing you need to consider in starting point?

Answer 9

• Are they the absolute owner? Is the land held on trust?
• Only half story bc whoever has legal interest might not be absolute owner, so need to find out if land help up y trust by somone else

Question 10

-What is the 3rd thing you need to consider in starting point?

Answer 10

Legal and beneficial owners may be the same people

Legal -find out

Question 11

-What is the 4th thing you need to consider in starting point?

Answer 11

Joint tenants and tenants in common or trust?

- only a requirement since 1998

Question 12

-What is the 5th thing you need to consider in starting point?

Answer 12

We must consider both legal and beneficial owners

Question 13

-What is the 6th thing you need to consider in starting point?

Answer 13

Trusts can be created expressly (express trusts) and by implication (implied trusts)

Question 14

what if you don’t hold prop on 50/50

Answer 14

If you don’t hod prop on 50/50 sharing then need to state this
-so the presumption is beneficial joing tenants and so my focus is so my focus is to do with the legal owner and then somebody possibly having benefical interest,

Question 15

We will consider two situations:

Answer 15

1. Where the legal title is held in joint names but the conveyance does not state how the beneficial interest is to be shared. Is joint beneficial ownership presumed and if so, can this be displaced by evidence that unequal beneficial ownership was intended?
2. Where the legal title is in the sole name of one party and there is no declaration of beneficial entitlement. In these cases, the law will assume the legal owner had sole beneficial entitlement. To rebut this presumption the non-legal owner must establish that the legal owner hold the property as trustee for both parties in equal or unequal shares.

look at law held in joint names next two do 1 persons name and next prop estop

Question 16

1. Where the legal title is held in joint names-

Answer 16

Presumption: Stack v Dowden [2007]

- joint legal ownership = joint beneficial ownership

Question 17

what must you make note of?

Answer 17

MAKE NOTE OF PRESUMPTION in this case there was no expressed benefical entitlement laws

Question 18

LEGAL TITLE JOINT- facts of stack v dowden

Answer 18

Facts:

Unmarried couple with 4 children purchased house in joint names in 1993 after 10 years cohabitation
Purchase funded by sale of Ms D’s home, Ms D’s savings and a joint mortgage (Ms D earned more than Mr S) – Ms D paid 65% of purchase price
Relationship broke down 9 years later and Mr S applied for an order of sale and equal division of the proceeds.
Although house was in joint names, there was no indication of how the beneficial ownership should be shared.

Question 19

What did the court of appeal hold in stack?

Answer 19

Court of Appeal and House of Lords agreed Mr S should receive 35%
out come was that stack should be awareded 35%

Question 20

2 apporaches in stack?

Answer 20

There are 2 approaches open to court it stack they could either justify the proceeds as per resulting trust – whatever u put in u get out- or they could take a broad brass approach by looking at all the contributions not just financial to get parties intetion regarding ownership
and they took the 2nd

maj of ct favoured broader

Question 21

when will the presumption of joint be rebutted as shown in stack?

Answer 21

• the presumption will only be rebutted if there is evidence of intention of unequal ownership-You can rebut if presumption but needs to be evidence of that
• in the absence of express agreement – need to consider parties’ whole course of dealing

Question 22

what is the problems with cohab?

Answer 22

1 problems with cohab don’t bother wrting anything down need an expres agrememnt with cohab but rarely happens

Question 23

what should you do with each case in exams?

Answer 23

Each case unique Each case turns on its facts and a court will need to consider factors outside of financial contribution. (broad appraoch)-stack

Question 24

These factors may include?

Answer 24

These factors may include:

• advice or discussion at the time of the transfer
• reason the house was acquired in joint names
• purpose for which home was acquired
• whether or not there are children
• nature of parties’ relationship

As well as how the house was financed and how finances were arranged

Question 25

why did baroness hale say could rebut presumption in stack?

Answer 25

Baroness Hale indicated there were many factors in Stack to rebut the presumption of 50/50 share:

• Ms D contributed more than Mr S
• All financial affairs were kept separate
• Separate responsibility for financial matters - Ms D had taken primary responsibility for the house
• Mr S did not contribute as much as he could have done

it would be unusual to rebut for there to be a differenence btw legal and beneficial ownership but stack was unusual- way they arranged their lives

Question 26

Criticism of Stack?

Answer 26

• Why were the facts so unusual?- decision was made on how much he made when it was other factors too?
• Why was there a rejection of the resulting trust framework?
• Separate financial arrangements not unusual for cohabiting couples

Question 27

what can we conclude from stack?

Answer 27

We can conclude for cohab couples length of rels and children don’t sem to have much bearing , court of appeal applied stack in fowler

Question 28

where did the coa apply stack?

Answer 28

Fowler v Barron [2008]

Long rels 2 children

Question 29

facts in fowler?

Answer 29

Facts:
23 year relationship cohabiting relationship – 2 children.
House purchased in 1998 in joint names – no evidence of how beneficial interest is to be shared
Mr B contributed money from a previous flat and his own money for deposit – joint mortgage of £35,000 and Mr B paid the instalments.
No joint bank account and Mr B paid all costs.
Ms F worked but spent her money on gifts, school expenses, clothing, etc
Wills left everything to the other on death.

Question 30

what did they get on breakdown?

Answer 30

On breakdown Mr B sought more than 50% based on his greater financial contribution.
She got 50% so stack wasn’t followed

Question 31

Reasoning?

Answer 31

i. E the whole course of conduct so need to look at the course of conduct, reason didn’t follow stack
- Incorrect to concentrate on financial contributions and a broad approach was required.

There conduct showed that they wanted to share

Question 32

Reasons for departing from Stack:

Answer 32

• wills showed each had a beneficial interest
• no other assets
• even though separate bank account – only one pool of assets
• disregard for contribution from other party

Question 33

when would a presumption be easier to rebut?

Answer 33

The presumption may be easier to rebut if the parties have not been living together in a marriage/cohabiting relationship.

Question 34

What happened in adekynle?

Answer 34

Adekunle v Ritchie [2007]
Mother and son (one of ten) purchased a house together – no declaration of beneficial interest
Both lived in the house until mother died

Question 35

Outcome of adek?

Answer 35

Presumption of joint beneficial ownership rebutted and the son obtained one third (33%).

-He was given a third because he had lived in the hkisue, he was jointly liable for mortgage and it was conveyed in joint name meaning he was awareded bit mre
If took strict mathmetical approach wuld have got 25% but awarded more cause bc he was on mort lived on prop and house was in joint names, got a little bit more but not huge amount

Question 36

Reasoning for ak?

Answer 36

Reasoning:

• house bought primarily to provide home for mother
• separate finances
• could not obtain mortgage without son’s help
• no reason to exclude the 9 other children
• Obviously here not living together as a couple so it’s a bit more of a usiness arrangment

Question 37

Legal titles held in joint names-What is another case?

Answer 37

Laskar v Laskar [2008]

Question 38

-what happened in laskar?

Answer 38

Mother transferred house into joint names (her and her daughter) in order to raise a mortgage.
Daughter made a small contribution towards the purchase price.
Property was bought as an investment and was rented out.
Relations between the two broke down and the daughter claimed joint beneficial ownership.

Question 39

outcome of laskar?

Answer 39

The court disagreed and she received 33%-Even though family members the house was bought as an investment so resulting trust principles applied.
Reasoning – u get out what u put in

for these cases dont go beyond lectures but need to be aware how law interps things diff

Question 40

contrast case of laskar?

Answer 40

Jones v Kernott [2011]

Question 41

-what happened in jones and outcome?

Answer 41

• Mr K move out of the family home and made no contribution to the property after than time.
• 13 years later he claimed 50% of the family home

The court disagreed - his beneficial interest had dwindled to 10%

Question 42

what was the reasoning for jones?

Question 43

Conclusion: stack?

Answer 43

So concluding read as written
absence- presumption absolutely – premsuption own legal and benefical interest
= presumption
Presumption isnthere because if parties wanted something different they should have said so people need to take respons for their actions
Presump can be rebutted, person with most hsare to prove it

Question 44

Q: What is the next step if the presumption of joint beneficial ownership is rebutted?

Answer 44

A: Need to consider any express or implied declarations

So if u want to split ur benefical joint ten then it has to be inwriting

Question 45

Express Declarations?

Answer 45

s. 53 Law of Property Act 1925 – must be in writing
- So if you want to expressly split then you need to write it down in absence of written doc,

u have to u have to rely on form of trust, so if u write it down its, other form of trust common intention constructive trust

Question 46

what happened in lloyds v rosset?

Answer 46

(concerned the case of an oral agreement to hold property on trust for another) where Lord Bridge said:

even if oral agreement- hold in trust for them both as tenants-common but ineffective since a valid decl= way of a gift of a beneficial interest in land section 53(1) of the Law of Property Act 1925= writing

oral but needs to be in writing

Question 47

How can it be done in writing?

Answer 47

Cohabitation contracts

Cohab contracts are void traditionally bc contrary to public policy and undermine marriage but cohab law changing with society = weight added like prenup but ct doesnt have to abide by them

Question 48

what about the contracts for the regulation of property and financial matters between cohabitants?

Answer 48

Difference between cohab contracts and the contraft for reg

Question 49

which contract does the could prefer?

Answer 49

Court likes 2nd one reg of prop must be in wrting set out the assets -must be in writing (s.2 Law of Property (Miscellaneous Provisions) Act 1989)- contract that reg ur property

next concern should be whether it is valid or not duress etc

Question 50

Where the legal title is held in a sole name?

Answer 50

legal interest is held in 1 name

i.e. there is no formal declaration of beneficial ownership
This arise because not many couples declare there beneficial interest and as it says on board

Question 51

How might someone get an interest?

Answer 51

Informal method

a. s.53(2) Law of Property Act 1925 a failure to comply with the formal requirements imposed by s.53(1) does not affect the ‘creation or operation of resulting, implied or constructive trusts’
b. a claim in proprietary estoppel 2nd deal with prop estpell so all of our lecture today and lecture 3 years on constructive trusts and lil on prop es

Question 52

Problem with stat?

Answer 52

Problem 1: the statute lacks guidance for the courts-doesn’t tell courts to recognise trust has been created, lack of

Problem 2: the rules are not specific to family disputes-creates prob for us in family law domestic contributions so the rules are not specifc – problem becyase when couple dovicore the domestic contrib will be taken into account so the problem family law is around this lack of recognistion of domestic contribution

Problem 3: courts have struggled to marry together the strict principles of the law while at the same time applying them to a couple who have cohabited-: courts have struffled read as written, so in aprticular those couples wil have shared home finances and particular care of children

Problem 4: Stack v Dowden emphasises that the court must apply technical requirements of the law – not what the court thinks is fair-read as written- so have to contrast this with breakdown of marriage and financial ordes on marriage where courts will decide what think is fair, fairness taken out of equation although not entirely can be quite harsh

Question 53

What do you have to contrast the method with?

Answer 53

So have to contrast this with breakdown of the marriage where fairness comes into it

Question 54

What does anyone claiming under this sec have to establish?

Answer 54

Anyone claiming under this section must first establish they have a beneficial interest and then the court will decide on the size of that interest

Question 55

What trusts are considered?

Answer 55

We consider the law relating to Resulting Trusts, Constructive Trusts and Proprietary Estoppel.

Question 56

1. What are resulting trusts?

Answer 56

Means you can either Presumed to arise on direct financial contribution
so tis partial it does not have to be equal finaicial contrib

Question 57

e.g of resulting trusts?

Answer 57

E.g. (a) A contributes to the purchase price/deposit of a piece of property which is put in the name of B or (b) A and B contribute equally but legal title in B’s name

So if a contributed 40% purchase price and b 60% purchase price the hosue is solely in bs name thenthe beneficial interest is held by b an a 40% a and 60% b- nice and simple

Question 58

when will a resulting trust not arise?

Answer 58

Doesn’t arise if gift- wouldn’t expect nothing in return, gifts are excluded

Question 59

When are resulting trusts more approp?

Answer 59

Probably more appropriate when considering investment properties
- Laskar v Laskar [2008]- mom and son
fam and theyre investing= investment property

Question 60

Limitations of resulting trusts in domestic settings:

Answer 60

1. Does not take account of indirect financial contributions so resulting trusts have a small part to play - ignores reality of cohab c’s sharing finances
2. Ignores contributions after purchase – Curley v Parkes [2004]
   Trust crystallises on date property is acquired -ignores any contrib on date so if make lump sum after purchase price wont be recog?
3. Contributor’s share may only be proportionate to the amount of their contribution - marriage has the power to award equal or not but all is not lost bc in stack case

Question 61

what happened in stack relation to the 2ndpart?

Answer 61

However – all is not lost - following Stack the resulting trust framework is much less relevant for domestic settings. Majority in House of Lords stated that resulting trust will no longer operate as a legal presumption in domestic cases and in Abbott v Abbott [2007] Baroness Hale stated: “the constructive trust is generally the more appropriate tool of analysis”

Question 62

what is meant by tool of analysis?

Answer 62

-when ur considering cohab couples the contrustice trust is gernealll the more approp tool of analysis, so in ecxam need to point out that resultig trust is quite harsh for cohab couple bc it fails to recognise any contrib after cohab starts, so when really unfair is when someone in 30 yr rels thr man contrib 90 % and woman contrib 10% so tehhy have resulting trust but if over 30 period she still only entitled to 10% what she contrib is ignored so quite harsh

Question 63

what are constructive Trusts?

Answer 63

there are 2 parts - pop amognst coha c

Question 64

what is the 1st part?

Answer 64

1st that there is an agreement i.e common intention to share the home beneifically and non-owning partner has relied on this agreement to their detriment (detrimental reliance)- need to estab both elements

Question 65

what does it mean by trust based on actual or inferred intentions?

Answer 65

• Trust based on actual or inferred intentions, rather than being imposed irrespective of their intentions – more flexible than resulting trusts

so main thing u have to understand with construive trust from our point of view what was cohabiting couples intention, did they intend to share benficial owenserhip of house what was there actual intenton, what u need to move away from is fairness , court isn’t really interested in whats fair just interested in what they agreed ,

Question 66

what is the problems of evidence of comon intention on breakdown?

Answer 66

there are some problems on evidence on breakdown obvs if rels breaks down u may have diff view of what u implied or inferred when youd dint maybe at the start of the rels, so point at which ur tring to deduce that there was a common inention is when rels broken down could be quite diff, so u got to disocver whether couple getting gon intended to share there home, and remmebr were talking about the common intention to share ebenfiical owerhsip and not occupation

Question 67

-what are the courts really trying to focus on with cohab couples?

Answer 67

So if you get q on this on exam make sure u emphasie very strongly that law not focued on occupation its focus on inention did man or woman intend to give the other one benefical owenshrp some of property or did they just intenf to occupy it
Suppose fair to say when relationship breaks down peoplehave very different perspective on their rels so eprespecitve is quite a good word

Question 68

-what about the unertainty part?

Answer 68

• There is also uncertainty about the type of conduct from which the court
  will infer common intention and of the acts which show reliance
  There is also some uncertainty about type of conduct, - read as written- law isn’t ever precise about what particular acts infer common intention, so e.g if u pay half mort does that infer common intention t share beneficial ownership, so which acts , sohhave t eb aware what cohab couples do so e.g pay bils mortgage, look after children, decorate, improve prop which of acts show there is a common intention

Question 69

-when may a court impose constructive trust?

Answer 69

• Courts cannot impose a constructive trust just because it appears to be the right thing to do
• very different from breakdown of marriage –last one

Question 70

Law governed in these questions ?

Answer 70

• Law governed by Lloyds Bank v Rosset [1991] Stack v Dowden [2007] and Jones v Kernott [2011]

Question 71

Two questions to be asked:?

Answer 71

i. Does a constructive trust exist?
Ii. If yes, what share does each party have?

And if yes In what shares

Question 72

Does a Constructive Trust Exist?

Answer 72

Establishing Common Intention

Question 73

Two ways of establishing common intention/agreement:?

Answer 73

Lloyds Bank v Rosset [1991]
a. ‘any agreement, arrangement or understanding reached between them that the property is to be shared beneficially’ - by agreement

b. Inferred from conduct (i.e. no express common intention to share)- inferred con

Question 74

• difference between constructive trust and resulting trust?

Answer 74

More flexible than resulting trusts
So the more flecible resulting trust bc resutlign trust only get out what u put in, resulting trust

more flexble and also u can have constructive trust where there hasn’t been direct financial contrib

Question 75

1st q telling us

Answer 75

Tellign us 1st q must ask is – any agreem read as written’ and then that arrangement can only be based on expressed discussion btw 2 parties so when youre in the exam and talking abut contstrucite trusts ask if there was any expressed element even if perfectly remembered??

Question 76

what happnened in Thomson v Humphrey [2009]?

Answer 76

• House was in Mr H’s sole name
• Ms T moved in with her children and gave up her part-time job
• Mr H stated that ‘he would look after her’
• Ms T refused to sign a ‘living together agreement’ stating she would not benefit from any beneficial interest.

Question 77

-what was held in thompson?

Answer 77

Held: Promise to look after her not the same as an agreement to share.
Even if the promise had been enough, the giving up of a poorly paid job did not show detrimental reliance (see later).

Question 78

debate in thompson?

Answer 78

There has been debate about wording, that wording that he would look after not same as agreement to share in this case that wording wasn’t strong enough for expressed intention to share beneficial owenrsh, adeven if was enough insufficient to dentrimenal reliance?? What he itnededn to do Is provide home for her but didn’t intend to share so got that distinc btw occupation and ownership
The gov wants everyone to be married backbone for stable societ children better and 1 way discourages cohab is one way not give rights but problem is for certain amount time require rights, even if contribu mortgag might give u rights but might not
- even though he refused to sign it was seen as evidence that he didn’t want her to have beneficial interest, fact he didn’t sign it was immaterial, so irrelevant that mr d didn’t not sign agreement, he didn’t intend to share cus didn’t sign he only wanted to share occupation so poor ms t

Question 79

Slater v Condappa [2012] ?

Answer 79

• credibility of the both parties in dispute
• in absence of other evidence could not trust evidence of claimant that she was promised either a 50/50 split or that the property would be hers if her partner was ever unfaithful again or they separated
• credibility of the parties was important as there was not anything other than the oral agreements to rely on

Slater case read as written – court says was there any express agreement but also takes account alla grememnts, this case is about credibility of parties so if ur going courts lviign some1 20 yrs beginning rels pay half mort get half , she claimed that she was promise 50/50 split …read as written, reason credibility came into hous she had council hosue, rented out, claiming housing benefit so she ahd leid to council, housing and income support, , so she was being dishonest, other part couple both of them they produce business but never tax ?????now as u know people genuinely hoens tdishonest she was dishonest tog et as much money she could so court said even though both dis she was more dis than him- had nothing but word of mouth hard to rely on

Question 80

what happened in james v thomas?

Answer 80

James v Thomas [2007] (more on this case later)
- improvement to the property ‘will benefit us both’ and an assurance that on death ‘you will be well provided for’ insufficient for a claim
James- need to look at wording
Past essay QUESTION ON COHAB COUPLES BC LAW IS SO IMPRECISE, UNLES EVIDENCE SO PRECISE THAT THERE ISNT ANYTHIGN FOR U TO DISCUSS

Question 81

what is the good news?

Answer 81

Sometimes the courts have found evidence:

Good news bit and mainly cos people been mislead

Question 82

what happened in Eves v Eves [1975] ?

Answer 82

• woman untruthfully told she was too young to be a legal owner
• implied that the house was jointly owned but there was a reason it was
  not officially recordedQ: Was this his true intention?
  Eves- court said that he said u would be elga owner shows he did intent to share I think if someone said would be owner but two young shows not beneficial ownership, but court said 2nd point q is probably not – emphasises what the parties represent to eadchother (case) so what do the parties , sor ememebr court doesn’t want to give few of what is fair, court only interested on what was agreed btw two parties, I want u to be beneficial owener but two young and that was recorded

Question 83

Hammond v Mitchell [1992]?

Answer 83

Hammond v Mitchell [1992]
* Mr H bought a bungalow in his own name saying to Ms M
‘don’t worry about the future because when we are married the house will be half yours anyway and I’ll always look after you and our child.’

sharing everything and beneficiary owenrhsip is evidence in that case woman acted in her detriment so he was businemmass man she helped in invest in soemv entures, future promise rather than present promise, - so in wording he says constructive trust are about ahing intention at the time, at time telling ur getting it, Hammond - = future promise but were interested in what cohabittes will do ??

Question 84

The difficulty of proving oral agreements was summed up in Hammond v Mitchell [1992]

Answer 84

so u have to be careful what u say, but what u say has to be precise to be taken as meaning, rely on words u have to look credibility of partie and actual wording