Daily Archives: February 8, 2015

Activity 5.5. Law of property Page 77.


X and Y are beneficial joint tenants. X writes to Y offering to seel his interest for 5 000 QUid. Y replies that he would like to buy Xs interes but tht he can only pau 4 000 pounds. Has it been severed?


No, it has not. Although there is an intention to sever it has not been carried through. iT AIN’t all over until it is over. This becomes a conyract for sale and the terms have not been agreed. It may be that rather thana ccept 4 000 pounds the man would prefer to maintaint the joint tenancy.

Harris v Goddard and Burgess v Rawnsley booth instadlly says that if someone writes a document saying her wishes to sever joint tenancy that this ends the joint tenancy. But here the man only offers to do so – eh does not actually sevver. Negotiations dod not sever anything.

Self assessment questions. Page 74. lAW of property


1.  Explain what is meant by joint tenancy and tenancy in common: what is the diifference between them?


Joint tenancy is in law. It means that the whole of the property is owned absolutely equally by two or more parties.

Tenancy in common is equitable. Two or more parties have the same possession but need not have any more unities. They can own unequal shares and sell or bequeathe their shares separately.


2. How can a person whose name is not on the legal title to land acquire a beneficial ineresr?


They can get it throygha constructive trust or a resulting trust. This is from giving money for the purcahse, renovation or imprivement of the land. They can give money for the general upkeep of the household or by work. It can be by proprietary estoppel.


3. What is common intention and how is it significant in ownership?


This is when both parties intend to do something – they want the same thing. This is very important if they both intend to shhare the land.


4. What are the four unities needed to establish joint tenancy?


Possession. Interest, Time and title.


5. When does co ownership arise via a resulting trust?


Whhen someone contributes to the household economy rather than the purchase price.


6. What kinds of contributions will trigger a constructive trust?


Paying money to buy the place or to do it up.


7. How have have the principles as to quantification of shares of cohabitees in their home changed recently?


It is more favourable to females.


Page 74. Law of property. Activity 5.4


Read Stack v Dowden. Note the facts and decisions. Incduing how the Lors view cases mentione earlier . Also read the Law Commission recommendations.


This is a 2007 case. Stack was a man who bought a house with his girlfriend Miss Dowden. It was jointly registered. She paid more money than him. They lived together for 18 years and produced two braces of children.

Miss Dowden had sold a house she previously owned to buy the family home. DUring their liaison they mostly kept their finances separate.

Stack had to move out when their relationshop terminated. Miss Dowden paid for his accomm.

Stackclaimed half the house. He said they must have a sale and they were tnenants in common.

The House of Lords said that Mis Dowden had 65% of the equity and might have had more had she claimed more. There was a constructive trust it was decided. The judges looked at the whole sotuation – money paid and work done to ameliorate the gaffe.

Baroness HHale said the onus is on the person who wiishhes the beneficial ownership to be different from the legal ownership to prove that this is so. They looked at many favotrs. Who paid what for the purchase, what they paid for renoovations, whether they had children etc… why they bouggth the house.

They had separate finances which indicated they did not wish to share the property.

Stack lost his appeal.


a. How should Lord Birdges judgment in Rosste be viewed?


He doubted that Rosset was right at the time. He said it was definitely wrong now.


b. To what extent would the Law Commission recommendations be a radical reform?


They would be a fairly big change, Unmarried couples would have more rights. More accurately the poorer one would be able to get money off the richer one. This would apply if they lived together for a certain period of time or had children


c. How similar are the Law Commissions recommendations to the approach taken by the House of Lords in Stack v Dowden?


Fairly similar but go forther. Baroness Hale is behind biith.


d. How does Lord Neuberger’s approach in Stack differ from that of the majority?


The noble lord says a resulting trust should be used. He was agains tthe court imputing the parites to have believed things.

He believed the appeal should be denied but for different reasons from the others. He said that a court muust not chhange the law so lightly.


Activity 5.3 Pagee 70. Law of property


Read Lloyds Bank v Rosset 1991 and not the relevant facts and decision.

The couple bought a ruined farmhouse. They made it habitable. It was purchased with Mr Rosset’s trust money. The trustees only agreed to hand over the money on the proviso that Mr Rosset alone would be the proprietor. This was followed. The wife paid nothing for buying it nor for renovations but she did work  in renovating th dwelling.

Mr Rosset secured a loan from the bank using the house as collateral. The spouse was not cognizant of this.

The husband failed to pay back the credit. The bank sought to seize the residence. Mrs Rosset said she had the right to stay since she had not known of the loan and was in actual occupation. She had an overriding interest. Under the Land Registration Act of 1925 her interest trumped the bank’s interest.

The bank argued to the contrary. The work she had done did not create an equitable trust for her.

This went to the House of Lords. They found that the date the charge was created was 17 December. The woman did not have an equitable interest in the property. No trust was created and no discussions were held. There was no agreement that she would have a share.She had not acted to her detriment. There was no sign of a constructive trust being created.

They looked at the conduct of the parties. They had not put their minds to the issue of sharing the house beneficially.

Constructive trusts existed in other cases such as Eves  v Eves and Grant v Edwards. These were different because there were unmarried couples. In both cases the male induced the female to believe that she would have a share in the house. This was not true in Rosset.


a. Why did Mrs Rosset’s claim for a beneficial half share fail?

She had not paid for the house to be bought or repaired. There was non agreement about her having  a share.


b. What would she have had to have done to succeed?

She could have had a formal agreement made or paid something towards renovating the place/


c. How does Lord Bridge subdivide constructive trusts?

In one category a party was led to believe that she would have a shhare in the house.


d. Is there a conflict between Rosset and Grant v Edwards? How?

In Grant v Edwards the woman did not legally have a share in the house. There was no written agreement and she did not pay for the house. She was still held to have a share in the house because there was an informal agreement that this was the case. It was because she was in the midst of a divorce that this was not put to paper as it was feared this would debilitate her case if she had an explicit agreement about the house.

There may be a contradiction because no serious money was given y that person and there was no express common intention in Grant v Edwards. Oddly this was approved f by Lord Bridges in Rosset.


Activity. 5.2. Page 70. Law of Property.


Read through Thompson M P ”An holistic approach to home ownership” and answer these questions.

a. How did the court in Le Foe v Le Foe treat Lord Bridge’s speech in Rosset and what is the courts reason for doing so?


Lloyd’s Bank v Rosset is a 1990 case. There is was laid down that contribution to household expenses does not of itself give someone a beneficial interest. Lord Bridges said there was never any agreement that the house be shared beneficially.

In Stack v Dowden criticised Lord Bridges. He said that even f the noble lord was right in 1990 ”the law has move on” and contribution too the expense of running a house can create a beneficial interest.

Le Foe does not clear up the situation. It muddies the waters as too wgether common intention can arise from indirect contributions.

Burns v Burns  – the judge said there must be certan contributison fpr common intention to be inferred.


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b Was this justifiable?

No it was not. Someone who does not pay for the house should not get any of it/


c. Which case did the court apply instead in quantifying shares and what was the result?

They looked at Oxley v Hisciock

They said the woman would get 65% of the house which was more than she gave in money. Contrbutiong time and money count if it improves the house.


d. How does this case fr with the earlier cases of Burns v urns and Gissing v Gissing?

This is different from Burns v Burns 1984. In that case the couple lived together for years. The woman maintained the house bt gave no money so she got nothing

Gissing v Gissing has been overturned by subsequent cases. This is a 1970 case about trusts. There was an married couple who had a house. The man bought the house in his name alone. The woman contributed to other household expenses. Thhe male left the house to live with someone else in 1961. The legal owner made payments partly because the other person had paid for other things. So that was an indirect contribution to the mortgage and that helped the person who was not the legal owner to establish an interesrt in the house.

The House of Lords said the woman had not made a financialy contribution to the house. There was no common intention to share equity. She got fuck all.

LaW Commission sas that indirect financial contributions is enough to get an interest. It says that property rights of unwed couples are unfair and illogical.


Law of property. Page 69. Activity 5.1


a. Read Midland Bank v Cooke . When and how did the court think that should shares be quantified?


This is a 1995 case. The court ruled that when someone contributes to buying a house his share can be more than he contributed.

This couple bought a house mostly with the man’s money. Mrs Cooke signed a consent form for hes interest to be postponed for the bank’s security. This went to the court of appeal. They said she should have an equal share of the beneficial interest. They looked at the whole course of dealing and not just the monies she gave.

There is a maxim – equality is equity. The judge observed that young couples seldom discuss what will happen if a relationship breaks down. Because there is no agreement then some say equity should not help them but that would be wrong.

The court says there was an intention to share in Cooke even though there had been no discussions about this. That is different from Rosset. The courts were imputing agreements where none had been made. This foreshadowed Stack v Dowden.

This goes against PPettit v Pettit in 1970 where the Lords said it wa snot for them to invent agreements between parties.


b. You should also read Oxley v Hiscock , make notes on the judgment and consider

i. its effect upon the quantification of interests and

ii. the role which each of the resulting trusts, constructive trusts and proprietary estoppel now play in co ownership.


i.   A man and a woman bought a house together. They were not wed. He paid 48% of it and she paid 28%. She was given 40% of it by the court. They looked not just at what she gave financially. They looked at the whole situation. Her contribution to the finances partly to do with bills etc….

This effects quantification because it shows how much wants pays toward t he purchase is not always the same as the sar eone gets.



ii. Constructive trusts are ver important in such cases. Resulting trusts re often to doo with buying together. propriety estoppel stop someone from gaping back on a promise made upon which another relied to his disadvantage. These are all pertinent to co ownership.

Difference between constructive trusts and resulting trusts is not big. Where one person was the legal owner of land and another had contributed the court could give a share to the contributing party. The court would look at the whole situation.

In this case one person had contributed much more so a 50-50 split would be wrong. that is why it was 60-40.



Page 60. Law of Property. Quick quiz.


1. What was the major change to the settlements effected d by TKATA 1996?

It made no change. Strict settlements can no longer be created due to a piece of legislation prior to TLATA.


2. What s Pauls inetesr in the settlement to paul for life and then to Anne.

He has the life interest in the remainder.


3. What is not the usual role of teustes of the settlement?

They must apply the capital money airing from eh land as the life tenant may direct. If that were the case there would be little point in having trustees.


4. Wat is the importance of section 14 and 15 of Tlata?

They set out who can apply for a court order for the exercise of trustees; function.