(p. 68) 4. Acquisition and protection of rights in the family home
(p. 68) 4. Acquisition and protection of rights in the family home
The family home is important both as a secure living space and as a potentially valuable but vulnerable asset. The loss of the home has profound effects on the welfare of the family, and on the State which has to support those who become homeless. Since the third edition of this book was published in 2011, the economic downturn of 2007 has not yet recovered. Unemployment and bankruptcy have both had a considerable effect on families’ abilities to retain their homes.
In this chapter, we consider the ways in which the doctrine of informal trusts; the doctrine of proprietary estoppel; the law of contract; the provisions of the Family Law Act 1996 (FLA 1996), Part IV, have been used by family members to protect their occupation of their home and/or to receive a share in the proceeds of sale.
A certain amount of confusion surrounds this area of law because, in the absence of reforming legislation, a number of judicial efforts, at the highest possible level, have been made to bypass the rigidity of traditional property law. A new judicial pragmatism has taken over.
The grant of orders under the FLA 1996 in the context of domestic violence is considered in Chapter 5. The reallocation of rights in the family home on the legal dissolution of a relationship is considered in Chapter 7.
Readers who require more detailed information on the law of property will find it in one of the property law books listed at the end of this chapter.
The family home: an overview
4.1 During the latter part of the twentieth century and the first years of the twenty-first century, the family home became the most valuable financial asset (often in close competition with a personal pension) for many families. It also continued to provide family members with the stability and security which is essential for their survival. Without a home in which to live, and without the knowledge that they are secure from eviction, no family can thrive satisfactorily; after food and clothing, shelter is the most basic of all human needs.
4.2 It has been accepted that Art 8 of the European Convention on Human Rights (ECHR) (the right to respect for privacy and family life), includes respect for a person’s home.
Lord Millett in Harrow London Borough Council v Qazi (2003) recognized that the home is a place where a person and his family: (p. 69)
4.3 Between 1920 and 2007, a significant social change relating to home ownership occurred. In 1920, only 10 per cent of property in the UK was owner-occupied; by 2007, this figure had risen to 70 per cent. During the 1980s, Margaret Thatcher’s Government popularized the idea of a property-owning democracy which would have a stake in the economic system. Later Governments, regardless of political persuasion, took a similar approach even to the extent of providing help with mortgage interest payments when family members become unemployed.
4.4 For most families, this increase in home ownership has been achieved by means of heavy borrowings, normally secured by way of a mortgage on their home. Many families were persuaded to take this risk because house price inflation gave them the opportunity to acquire capital. In 2007, average house prices rose by 10.9 per cent and the price of the average family home was £205,286. The home was seen as a source of wealth which could be passed on by inheritance from parent to child. It was regularly used as security for further borrowings to help finance, inter alia, such ventures as family businesses, university education, holidays, or to help adult offspring to purchase their own family homes.
4.5 By 2011, the house inflation of previous years, and uncertainty about future inflation, alongside a global economic recession, led to a fall in owner occupation. Figures produced in that year by the Department for Communities and Local Government report revealed that 59 per cent of families were owner-occupiers.
As more families have not only found it difficult to raise money to make a down payment on a home but have also had to face the risk of unemployment, they appear to have made the decision to rely on the increase in the supply of private sector rented property. This trend is likely to continue; many families are beginning to see the advantages of the freedom to move easily from one rented property to another, possibly to a new area, and without the risks and expensive maintenance involved in home ownership. This change may begin to have a significant effect on many aspects of family law such as financial provision on divorce, and inheritance (see Chapters 6 and 7).
Problems of home ownership
4.6 Where personal borrowings to fund the family home are exceptionally high, and when unemployment is a serious possibility, financial difficulties become commonplace. Families risk having to sell their property. In some cases, where borrowers have been unable to make repayments on loans secured against the family home, lenders may attempt to repossess it and bankruptcy may follow.
4.7 In these difficult circumstances, disputes can arise over ownership of the home, the rights of occupation in it, and the division of the proceeds of sale. Many couples do not lead the organized lives expected of them by the complexities of land law. The legal title to the property may (p. 70) have been conveyed into one, or even both, of their names but they may have failed to give any thought to the precise share of their beneficial interest in the property or may have failed to record it in writing. (The differences between legal and beneficial ownership of property will be found in any of the property law textbooks listed at the end of this chapter.)
4.8 In determining beneficial ownership disputes where a couple have failed to clarify the matter, strict principles of property law are supposed to apply. These principles have long been criticized as inappropriate in the family context. They do not reflect the informality with which many couples conduct their financial affairs. They have been particularly problematic for cohabitants who, unlike married couples or civil partners, do not have the benefit of the court’s jurisdiction to redistribute their property as it thinks fit at the end of a relationship (see Chapter 7).
4.9 Various solutions have been proposed by the Law Commission but legal reform has not followed.
Baroness Hale in the House of Lords decision in Stack v Dowden (2007) (see 4.65) commented that the lack of reform in this area means that:
The Law Commission proposals
4.10 In 2002, the Law Commission produced Sharing Homes: A Discussion Paper (Law Com No 278). It examined the problems experienced by all those who share homes and emphasized the importance of persuading them to formalize their arrangements and declare the nature of their respective shares in the beneficial interest. The Law Commission proposed that any changes in the law should be by way of a default system which would apply only if home sharers had failed to specify the share of the beneficial interest. The report was inconclusive but took an approach which, very broadly, would take into account the home sharers’ contributions to the property in determining their share. There has been no legislation resulting from the Commission’s Report.
Cohabitants and the family home
4.11 In 2007, the Law Commission’s report, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307) considered the problem of how to resolve disputes relating to family homes shared by the ever-growing number of cohabitants. It pointed out the difficulties of using strict property law to resolve these disputes. Its recommendations are considered in more detail in Chapter 7. As was seen in Chapter 2, the Government has made clear that it does not propose to legislate in the near future and give cohabitants greater rights than they now have.
(p. 71) Sharing the family home: a hotchpotch of trust law
The ideal: express declaration of ownership
4.12 In a perfect world, all those who agree to live together in their family home would decide how that property should be owned. If it is to be a genuine joint enterprise, and they propose sharing the profits and losses equally, they would decide to register the legal title in both their names. They would also tick the relevant box on the registration application form making clear that the beneficial interest is also to be shared equally. This would comply with the formal requirements for property transactions to be in writing (Law of Property Act 1925, ss 52, 53, Law of Property (Miscellaneous Provisions) Act 1989, s 2), and it would be difficult for any person to challenge ownership at a later date.
4.13 Of course, it is possible that the home sharers may change their minds in the future about their respective shares in the beneficial interest. If so, they would also record the change in writing.
4.14 In making the decision about their shares in the beneficial interest in their family home, the home sharers would also consider whether they wish to be joint tenants or tenants in common. Very broadly, if they decide to be joint tenants, each person owns all of the property. When one of them dies, his or her interest disappears. The survivor will now own all of the property alone, and no share remains to be inherited under the deceased’s will or on an intestacy (see Chapter 8). If the property is sold, the joint tenancy ends, and each person will be entitled to receive an equal share of the proceeds of sale.
If the home sharers would prefer to be tenants in common, each of them will own an agreed specific share of the beneficial interest in the property. When one of them dies, he or she may leave that share by will, or it may pass on an intestacy. If the property is sold, each will receive the proportion of the proceeds of sale in accordance with their agreement.
4.15 The judiciary has regularly emphasized that disputes about family homes would disappear entirely if everyone behaved in this ideal way. Unfortunately, the judicial cry has been ignored by so many, and the decisions discussed in this chapter illustrate this.
The real, and messy, world
4.16 For those who have ignored the niceties of property law, and there are many of them, harsh legal reality hits when their relationship breaks down, or their home sharer dies, or a lender, with a secured interest in the property, takes action because loan payments have not been kept up to date. They may try to rescue themselves from complete disaster by attempting to claim rights under the doctrines of informal trusts or proprietary estoppel. They should not rely on a favourable outcome.
According to Carnwath LJ, in the Court of Appeal decision in Stack v Dowden (2005), the various interpretations of these doctrines are confusing:
To the detached observer, the result may seem like a witches’ brew into which various esoteric ingredients have been stirred over the years, and in which different ideas (p. 72) bubble to the surface at different times. They include the implied trust, constructive trust, resulting trust, presumption of advancement, proprietary estoppel, unjust enrichment and so on. These ideas are likely to mean nothing to a layman and often little more to the lawyers who use them.
4.18 One of the advantages of informal trusts of the family home is that they are not required to be in writing (Law of Property Act 1925, s 53(2)). If a person is able to establish the existence of such a trust, he or she acquires a beneficial interest in the property and, along with it a right to occupy the family home (Trusts of Land and Appointment of Trustees Act 1996, s 12; FLA 1996, Part IV), a right to ask the court for sale or delay of sale of the home (Trusts of Land and Appointment of Trustees Act 1996, s 14), and an entitlement to a share in the proceeds of sale. All these rights have the potential to prevail over the rights of third parties who may acquire the property at a later date.
4.19 Rights in the family home acquired by way of proprietary estoppel give rise to not entirely dissimilar benefits.
4.20 After the decision in Williams and Glyn’s Bank v Boland (1981), lenders and purchasers became more cautious about the possible existence of an informal trust in the family homes of borrowers. They now tend to demand that any person, who might conceivably claim that such a right exists, waives the right prior to sale or to the grant of any loan which will be secured against the property.
In Boland, the husband borrowed money which was secured against the family home in order to finance his business. When he could not afford to repay the loan, the bank decided to take possession. Mrs Boland maintained that she had a beneficial interest in the property which gave her a right to remain in residence (Land Registration Act 1925, s 71(g); see now Land Registration Act 2002, Sch 3) and that her right bound the bank. The House of Lords ruled in her favour.
As a consequence of the Boland decision, lenders and the courts began to demand evidence of how the beneficial interest came into existence. They were not prepared to accept a mere statement by the claimant that he or she had acquired such an interest. Furthermore, even if the claimant could prove the existence of an interest, if he or she had knowledge of the loan and/or benefited from it, the courts refused to allow the right to prevail over that of a third party lender or purchaser (see eg Bristol and West Building Society v Henning (1985); Abbey National v Cann (1991); Lloyds Bank v Rosset (1991)).
4.21 Traditionally, informal trusts were categorized as resulting or constructive trusts. However, in the family context, there has been a tendency on the part of the courts to elide the two concepts rather than distinguish between them in any precise or helpful way.
4.22 Although the majority of family home disputes now tend to be analysed in terms of constructive trust principles, a brief look at resulting trust principles is necessary.
(p. 73) In the familial context, a resulting trust was said to come into existence in two types of situation. First, where property was purchased in the sole name of one partner, and the other partner (or other family member) had made a financial contribution to the purchase price (the contribution could take the form of payments towards the overall cost of the property; the initial deposit; mortgage payments; legal fees; or the transfer of a discount which had been granted to the claimant by the seller), there was a rebuttable presumption that the parties expected to share the beneficial interest in the property in proportion to their financial contributions. This presumption was based on the rather materialistic view that no one would make a financial contribution to another person’s property without expecting something in return.
4.23 In the second situation, where property was purchased in the names of both persons without any explicit declaration of their respective beneficial interests, a rebuttable presumption arose that the beneficial interest would follow the legal interest, and it would be held in equal shares regardless of their respective financial contributions (see Springette v Defoe (1992)).
The presumption of advancement
4.24 The presumption of a resulting trust could be rebutted if the presumption of advancement applied. This rather archaic and paternalistic principle provided that where a husband, father, or fiancé made a contribution towards the purchase price of a property, which was registered in his wife’s, child’s, or fiancée’s name, he was presumed to have made a gift of the property. There would be no resulting trust in his favour. The principle did not apply to wives or fiancées who provided did money towards the purchase price of their husbands’ or fiancés’ properties, nor did it apply to civil partners. The presumption of advancement could be rebutted by evidence to the contrary.
In McGrath v Wallis (1995), Nourse LJ stated that:
… in its application to houses acquired for joint occupation, the equitable presumption of advancement has been reclassified as a judicial instrument of last resort … For myself, I have been unable to recollect any subsequent case of this kind in which the presumption has proved to be decisive, even where one of the parties had since died.
4.25 The Equality Act 2010, s 199 abolished the presumption of advancement in future cases. The section has not yet been brought into force.
Monies and motives
4.26 No resulting trust could arise where there was evidence that the financial contribution was a gift or a loan or could be attributable to another motive.
In Vajpeyi v Yusaf (2003), Dr Vajpeyi had had a relationship with Mr Yusaf and had hoped to marry him. She was a divorced Hindu older woman with children and he was a young Muslim bachelor; these facts made marriage a rather unlikely possibility. In 1980, six years after their relationship began, Dr Vajpeyi gave Mr Yusaf £10,000 to purchase a house as an investment property in his sole name. She had hoped that it would be a joint nest egg for their future together and she did not demand any share of the rents or profits. In 1984, Mr Yusaf (p. 74) entered into an arranged marriage with a Muslim woman but his relationship with Dr Vajpeyi continued. According to the judge, Dr Vajpeyi and Mr Yusaf:
… just could not let go of each other. It was like a powerful drug—in some ways, much worse. A great deal of guilt and resentment built up on one side or another. Arranged marriages are said to work just as well as the other sort. At any rate, over time Mr Yusaf seems to have developed a close relationship with his wife Tehsin, although for a long period he was torn both ways. Mr and Mrs Yusaf had a daughter on 5 November 1985 and a son on 1 February 1988.
It was the Claimant’s evidence that she was the deceived woman: that she went along with the Defendant’s marriage only because she believed it was nothing but a barren [sic] formality, entered into under extreme family pressure, and that he would in due course leave his wife for her. In my judgement the Claimant’s heart wanted it to be so, and she may at times have been persuaded (or have persuaded herself) that it was so. But the Claimant had a head as well as a heart. This was no Regency novel, Dr Vajpeyi was no simple country girl and Mr Yusaf was no heartless old libertine. He loved her with a passion. She was 12 years older that [sic] he. She was a highly educated woman—a doctor with a busy family practice—and she was well acquainted with the customs of the Indian sub-continent.
On any conventional view neither of them behaved well. I have said that I do not propose to set out more of the circumstances than is necessary, and I shall keep to that resolution. In my judgement, it came to this. On the one side, she sought to put him under intense emotional pressure—perhaps not a difficult thing for her to do in the first place, for she was very attractive and he felt about her intensely—but she strongly worked on his feelings of guilt by performing certain acts which I refrain from describing in detail. On the other side, he told her things about his relationship with his wife that were manifestly absurd, and I do not mean the platitudes that men are traditionally supposed to utter in those situations. He said things that her heart wanted to hear but her head could not have believed. He did it because, in his own words:
Dr Vajpeyi argued, inter alia, that she had a resulting trust in the property. The court held that in the circumstances of the parties’ relationship, the presumption of resulting trust was rebutted. On a commonsense view of what had happened, the monies advanced had been loans and they had been repaid by the time the claim was made.
(See also Chapman v Jaume (2012).)
4.27 There are two essential elements to found a constructive trust. First there must be an agreement or a mutual understanding, which may be express or implied, that the beneficial interest in the family home is to be shared. Second, the person claiming the benefit of a constructive trust must have acted to his or her detriment in reliance on the agreement or understanding.
(p. 75) Agreements to share the family home
The decision in Lloyds Bank plc v Rosset (1991)
For many years, the decision of the House of Lords in Lloyds Bank v Rosset (1991) was regarded as the gold standard for establishing constructive trusts of the family home. Mr Rosset had purchased a semi-derelict farmhouse in his sole name, using money provided by the trustees of a family trust. Before the family moved into the property, Mrs Rosset spent every day at the house for four months. She monitored the builders’ work, went to the builders’ merchants, and organized the delivery of all the necessary materials. She helped to plan all the renovations of the house, and carried out a substantial part of the preparations prior to the decoration of the interior. During this period, Mr Rosset was mainly abroad, and Mrs Rosset had total responsibility for the renovation. In addition she cared for their children.
Without his wife’s knowledge, Mr Rosset obtained a bank overdraft and mortgaged the family home to the bank but he subsequently became unable to make the repayments. The bank commenced proceedings to sell the property. Mrs Rosset claimed that she had a beneficial share in the property by way of a constructive trust, which was binding on the bank.
The House of Lords rejected her claim; Lord Bridge explained in some detail the principles of constructive trusts. In his view, there were two types of agreement that could give rise to a constructive trust. The first required the court to ask the question:
… whether there has, at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been.
Once this agreement has been found, the person claiming a trust must show that he or she has acted to his or her detriment in reliance on the agreement or intention. The detriment in these circumstances must relate to the property in some way but need not necessarily be a financial contribution.
The second type of agreement, according to Lord Bridge, is:
… in sharp contrast with [the first] situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, and 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 constructive trust.
He maintained that only direct financial contributions, made by the claimant, and referable to the purchase of the property, could provide the dual function of the inference of an agreement or intention and the relevant detrimental reliance on it. Nothing else would be sufficient (see Gissing v Gissing(1971)).
(p. 76) Lord Bridge acknowledged the difficulties involved in determining the intentions of the parties in familial disputes at a time when the relationship had broken down. He explained that:
Spouses living in amity will not normally think it necessary to formulate or define their respective interests in property in any precise way. The expectation of parties to every happy marriage is that they will share the practical benefits of occupying the matrimonial home no matter who owns it. But this is something quite distinct from sharing the beneficial interest in the asset, which the matrimonial home represents. These considerations give rise to special difficulties for judges who are called on to resolve a dispute between spouses who have parted and are at arm’s length as to what their common intention or understanding with respect to interests in property was at a time when they were still living as a united family and acquiring a matrimonial home in the expectation of living in it together indefinitely.
The House of Lords maintained that in spite of the agreed joint venture to create a family home, there was insufficient evidence of the first type of agreement to share the beneficial interest. Indeed, there could have been no agreement because Mr Rosset had purchased the house and paid for its renovations from trust funds. He knew that the trustees would not have released the funds to him had they known that he was planning to share the beneficial interest with Mrs Rosset. Furthermore, there was no conduct from which the second type of agreement could be inferred because Mrs Rosset had provided no financial input for the purchase of the farmhouse.
4.29 The decision in Rosset (1991) limits the possibility of claims of beneficial interests in the family home. Beneficial interests are not part of the everyday conversation of most couples. They often fail to understand their significance and do not always make clear their agreements with each other. Inferred agreements equally elude them; women without financial resources are more likely to make non-financial contributions, often in the form of housekeeping and childcare, which enable their partners to earn the money to pay for the family home. If women do earn money, they are more likely to use it to purchase consumable household goods. In the absence of evidence of a clear agreement, neither of these types of contribution, according to Rosset, permit a claim to a share in the beneficial interest of the family home. (See also Burns v Burns (1984).)
A more familial approach to agreements
4.30 Even prior to Rosset (1991), the courts had begun to develop an approach which recognized that the analysis of familial relationships and the discovery of relevant agreements are not a scientific exercise. The judiciary was prepared, by sleight of hand, to find evidence of agreements in circumstances where the person who was the legal owner of the property had made an excuse about his or her motivation for purchasing the family home in his or her own name. Such an excuse could well have given rise to a belief that the legal owner would have liked to share the beneficial interest in the property had the circumstances been slightly different.
An example of this approach can be found in Eves v Eves (1975) where a male cohabitant told his female partner that the only reason why the property was to be acquired in his name alone was because she was under 21 years of age; this was accepted as a relevant agreement in the context of constructive trusts.
A similar approach was taken in Grant v Edwards (1986) where a man had told his partner that he could not put the house in joint names because it might affect her divorce settlement. This was held to be evidence of a common intention to share the beneficial interest.
(See also Hammond v Mitchell (1992).)
4.32 Following Rosset (1991), the courts continued to accept that approach as a way to overcome Lord Bridge’s seemingly rigid principles.
In the House of Lords decision in Stack v Dowden (2007) (see 4.65), Lord Walker questioned Lord Bridge’s view that only financial contributions would lead to an inference of a common intention to share the beneficial interest:
Whether or not Lord Bridge’s observation was justified in 1991, in my opinion the law has moved on, and your Lordships should move it a little more in the same direction …
Baroness Hale agreed, and said that Rosset had set the hurdle too high for claimants seeking to show that there was an implied intention, or agreement, to share the beneficial interest.
It must be stressed, however, that in Stack v Dowden (2007) it was not in dispute that there was a Rosset-compliant agreement to share the beneficial interest because the property was registered in both partners’ names. The decision centred on whether the couple’s intention, manifested by that joint registration, had changed over time and, if so, what effect had it had on the partner’s respective shares. Despite the statements of Lord Walker and Baroness Hale, as yet there is no clear decision which has lowered the hurdle imposed in Rosset for the finding of agreements when the property is in the sole name of one of the partners. It will surely happen.
4.33 In addition to the relevant intention or agreement, the claimant must also show detrimental reliance.
4.34 It has generally been accepted that where the claimant has made a significant financial contribution to the property, that will also serve as proof of both the relevant intention and the necessary detrimental reliance.
4.35 Where the court finds the existence of an agreement or common intention, any conduct referable to the property has been accepted as sufficient detriment if it is found to be in reliance on the agreement or common intention of the parties.
In Rosset (1991), Lord Bridge found that Mrs Rosset’s conduct was insufficient to be regarded as detriment. He explained that even if the court had been prepared to find the relevant agreement or common intention, the conduct claimed as detrimental reliance was not only de minimis, but was also explicable by her desire to get her family happily installed in their new home prior to Christmas.
(p. 78) (See also Geary v Rankine (2012).)
In Eves v Eves (1975), Mrs Eves claimed that in reliance on the agreement she had:
… stripped the wallpaper in the hall; painted the woodwork in the lounge and kitchen, and the kitchen cabinets, and generally cleaned the whole house; she painted the brickwork in the front of the house; using a 14 pound sledgehammer she broke up a large area of concrete covering the whole of the front garden and carried the pieces to a skip which had been hired for the purpose; she then prepared the front garden for turfing; she did work in the back garden and helped the defendant to demolish a shed there and to put up a new one.
The Court of Appeal was most impressed by this masculine-like behaviour and granted her a beneficial share in the property.
4.38 It remains uncertain what other conduct might be accepted by the courts as a relevant detriment, particularly if it is not directly referable to the property in some way.
Hammond v Mitchell (1992) was a racy story of a ‘bunny girl’ who cohabited with a divorced man after a chance encounter in Epping Forest, and whose relationship ended after another chance encounter with him in an aeroplane on the tarmac at Heathrow as she was leaving to join her young Spanish barman lover. In this instance, Waite LJ acknowledged the woman’s general contributions to the household economy and care of the children as relevant detriment reliance.
Quantification of the beneficial interest
4.39 For many years, the constructive trust cases which came before the courts were primarily concerned with the issue of agreement or common intention. More recent case law has centred on the quantification of the beneficial interest in circumstances where there was evidence of a Rosset-compliant agreement.
4.40 On a strict interpretation of the law, where the agreement was implied from financial contributions, the claimant’s share was said to be in proportion to the amount of his or her financial contribution to the property.
4.41 Where there was evidence of an explicit agreement or an intention that the property should be shared, the conservative view was that the claimant should receive the share agreed.
The move to pragmatism
4.42 The courts found this conventional view to quantification unsatisfactory in the family home context and attempts were made to replace it with a more holistic, and pragmatic, approach. The decisions that follow illustrate this pragmatism.
4.43 The decision in Midland Bank plc v Cooke (1995) was perhaps the first time a holistic approach was taken to quantification, although some might argue that Lord Denning’s approach in Eves v Eves (1975) was the real starting point when he awarded Mrs Eves a one-third share in the beneficial interest in the property without any explanation why he had done so.
(p. 79) In Cooke, Mrs Cooke and her husband had been given a wedding present of £1,000 in 1971. They had used the money as a deposit towards the purchase of their first home, which was conveyed into the sole name of the husband; he subsequently made all the mortgage payments. Waite LJ held that this initial contribution gave rise to a Rosset-compliant agreement that the couple were to share the beneficial interest in some unspecified proportion between them. He stressed that the couple had not, and indeed could not have, at the time of purchase, formulated with any precision what their final shares would be. He was, therefore, perfectly happy to quantify their respective shares on the basis of their conduct during the relationship. During a long marriage, Mrs Cooke had contributed financially to the household income, and made a major contribution to every aspect of the relationship including working on the property. Waite LJ explained that to give Mrs Cooke other than an equal share in the beneficial interest would be inequitable because:
Equity has traditionally been a system which matches established principle to the demands of social change. The mass diffusion of home ownership has been one of the most striking social changes of our own time. The present case is typical of hundreds, perhaps even thousands, of others. When people, especially young people, agree to share their lives in joint homes, they do so on a basis of mutual trust and in the expectation that their relationship will endure. Despite the efforts that have been made by many responsible bodies to counsel prospective cohabitants as to the risks of taking shared interests in property without legal advice, it is unrealistic to expect that advice to be followed on a universal scale. For a couple embarking on a serious relationship, discussion of the terms to apply at parting is almost a contradiction of the shared hopes that have brought them together. There will inevitably be numerous couples, married or unmarried, who have no discussion about ownership and who, perhaps advisedly, make no agreement about it. It would be anomalous, against that background, to create a range of homebuyers who were beyond the pale of equity’s assistance in formulating a fair presumed basis for the sharing of beneficial title, simply because they had been honest enough to admit that they never gave ownership a thought or reached any agreement about it.
The decision in Cox v Jones (2004), also illustrates this new flexibility towards quantification. Both of the partners were barristers. Ms Cox, the claimant, began to cohabit with Mr Jones, the defendant, in his flat in Lincoln’s Inn. Ms Cox had a large Alsatian dog, named Bootsie—such dogs appear to play a not infrequent part in family decisions; Mrs Eves in Eves v Eves (1975) also had one. Mr Jones found life in the small flat with Ms Cox and the dog rather constricting and not compatible with his love of order. Ms Cox and the dog moved out, and she and Mr Jones sought a larger family home in the country. The house, known as The Mill, required extensive renovation and was purchased in Mr Jones’s sole name. Ms Cox managed and coordinated the project, but Mr Jones paid for the cost of all the works.
Ms Cox also found a flat, which she wished to purchase as an investment. Mr Jones paid the greater part of the purchase price because Ms Cox had insufficient financial resources to do so. The price of the flat was discounted; Ms Cox had astutely persuaded the vendor to allow her to buy it at a low price in order to avoid the expense of placing it on the open market. This property, like The Mill, was also registered in Mr Jones’s sole name.
(p. 80) The relationship between the parties was tempestuous and, at times, violent. Not surprisingly, it failed to thrive, and Ms Cox claimed a beneficial interest in both the house and the flat. The court commented that although Ms Cox was a barrister:
… she did not always behave in a manner which one might expect of a lawyer, in particular on the occasions when she failed to pursue the idea, which was clearly in play, that her interest in the two properties should be protected by a trust deed. However, I think that that can be put down to the fact that people with commercial and legal expertise very often do not deploy that expertise in their own personal affairs.
Mr Jones denied that there was any agreement to share the beneficial interest in the house jointly, and also argued that Ms Cox had exaggerated her contribution to the management of the renovation. The court found that there was express evidence of an agreement, albeit one which did not provide for an exact quantification of the parties’ shares. It recognized that in determining the existence of an agreement it must bear in mind:
… that at the heart of the differences between them lies the formation, continuance and breakdown of their relationship. It was, as they both admitted to me, a highly charged relationship with many ups and downs. That sort of situation is a perfect breeding ground for differences of perception and bona fide differences of recollection and emphasis. Sorting out what actually went on from time to time, and what passed between the parties, is particularly difficult. Their respective credibilities have to be seen in that light. Very often the parties will have equally reliable, or unreliable, recollections and views of what happened.
The court awarded Ms Cox a 25 per cent beneficial share in the house, based on her management of the project.
However, with respect to the flat, the court took a more generous approach. Mr Jones maintained that he had purchased the flat as an investment for himself and denied that Ms Cox had any beneficial share in it. The court found an express agreement, made prior to the purchase of the property, that Mr Jones would hold it, as nominee, absolutely, for Ms Cox. She had acted to her detriment in reliance on that agreement by allowing Mr Jones to benefit from the discounted price, which had been secured by her negotiation skills alone, and she had managed the rental of the property afterwards. She was, therefore, held to have acquired a 100 per cent beneficial interest in the flat.
In Oxley v Hiscock (2004), the Court of Appeal maintained that the right question for the court to ask:
… was what would be a fair share for each party having regard to the whole course of dealing between them in relation to the property.
Ms Oxley had purchased her council house in her sole name in 1987, at the discounted price of £25,200 using money provided by Mr Hiscock, with whom she subsequently began to cohabit. Mr Hiscock had worked in Kuwait and during the invasion by Iraqi troops in 1990 he was captured, taken to Baghdad, and held as hostage. On his release, he returned home and a new property was purchased for £127,000. The funds for this property came from the proceeds of sale of the first house which amounted to £61,500 (£25,200 belonged to Mr Hiscock on the (p. 81) basis of his contribution, and £36,300 to Ms Oxley on the basis of the discount), £35,500 from Mr Hiscock’s own savings, and a mortgage loan of £30,000. The property was conveyed into the sole name of Mr Hiscock. Ms Oxley ignored warnings from her solicitor that she should ensure that the property be conveyed into the couple’s joint names, and she refused to do so. After the purchase, both parties contributed towards the maintenance and improvement of the property from their pooled resources in the belief that each had a beneficial interest. By 2001, the mortgage had been paid off. The relationship between the parties broke down, the property was sold, and separate houses were purchased. Ms Oxley claimed that she had a 50 per cent beneficial interest in the proceeds of sale of the property. Her claim was granted.
Mr Hiscock appealed. He accepted that there was an intention that the beneficial interest should be shared but argued that it should be quantified in proportion to their respective contributions. The Court of Appeal granted his appeal, and maintained that a fair division would be 60 per cent to Mr Hiscock and 40 per cent to Ms Oxley. (See also Gallarotti v Sebastianelli (2012); Aspden v Elvy (2012)).
The high point of pragmatism
4.46 Stack v Dowden (2007)
According to the House of Lords in Stack v Dowden, the starting point for quantification where the legal title is in the names of both parties is that the beneficial interest follows the legal interest and the partners have equal shares regardless of their financial contributions. If one partner wishes to dispute this division, he or she must produce evidence of a contrary intention. In its determination of such an intention, the court must take a holistic view of the whole course of dealing between the parties.
Mr Stack and Ms Dowden were unmarried. They had lived together with their four children for over 20 years before their relationship broke down. In 1983, Ms Dowden purchased a house, in her sole name, for £30,000. It had belonged to a man whom Ms Dowden called Uncle Sidney. He had expressed the wish, before his death, that she should be allowed to buy it at a discount. She obtained a loan of £22,000 in her sole name; the remainder came from her own savings. She made all the payments on the loan and all the utility bills.
The couple both spent time altering, repairing, redecorating, and generally improving their new home, although Mr Stack did more work than Ms Dowden. In 1993, the property was sold for £90,000. A new property was purchased. This time the legal title was put into the couple’s joint names but they did not specify how the beneficial interest in the property should be shared. The purchase monies were provided partly by Ms Dowden and partly by way of a mortgage in favour of the bank and by two endowment policies, one in the couple’s joint names and one in Ms Dowden’s sole name. The mortgage interest and joint endowment policy premiums, which eventually amounted to £33,747, were paid for by Mr Stack, and the capital was repaid by a series of lump sum payments to which Mr Stack contributed £27,000 and Ms Dowden £38,435. Ms Dowden paid the premiums on the life policy in her name, and all the utility bills which were in her name, although Mr Stack claimed to have paid some of them. Throughout their relationship, the couple had separate bank accounts and separate investments and savings.
(p. 82) In 2002, the relationship broke down and Ms Dowden remained in the family home with the children. Mr Stack wished to have the house sold and claim a 50 per cent share in the beneficial interest of the property. Ms Dowden maintained that his claim was unfair because of her greater financial contributions to its purchase. The judge ruled in favour of Mr Stack, and Ms Dowden appealed.
The Court of Appeal allowed her appeal and awarded her a 65 per cent share of the property. Mr Stack appealed to the House of Lords and his appeal was denied. Their Lordships stated firmly that any division of the beneficial interest must be based on trust principles, and Lord Neuberger categorically rejected any possibility that judges should impose their own idea of a fair division based on the parties’ long-term familial relationship. However, it maintained that it was important to take into account the realities of such relationships in determining the couple’s intentions.
Baroness Hale who gave the leading judgment maintained that:
In law, ‘context is everything’ and the domestic context is very different from the commercial world. Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties’ true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names … the purpose for which the home was acquired; the nature of the parties’ relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties’ individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.
In spite of this strong statement, and her warnings about taking an arithmetical approach, Baroness Hale found that Ms Dowden and Mr Stack fell into that rare category of a couple who had kept their financial dealings very separate, and that, in this context, their differential contributions were significant. The Court of Appeal’s decision was upheld.
4.47 Jones v Kernott (2011)
In Jones v Kernott (2011), the Supreme Court revisited and attempted to clarify the decision in Stack v Dowden (2007). Ms Jones and Mr Kernott were an unmarried couple with (p. 83) two children. In 1985, the couple bought a family home which was conveyed into their joint names for £30,000. There was silence about their respective beneficial shares in the property. Ms Jones provided £6,000 towards the purchase price and the balance came from an interest-only mortgage loan supported by an endowment policy.
Mr Kernott gave Ms Jones £100 per week. From that and her own earnings she paid for housekeeping, mortgage payments, and other outgoings on the property, and the premiums on the endowment policy. Mr Kernott built an extension on the property which increased its value by 50 per cent of the purchase price.
In 1993, the couple separated and Ms Jones assumed total responsibility for all the outgoings and for the maintenance of the children. In 1996, Mr Kernott purchased a home for himself using his share of a further insurance policy. In 2006, he claimed a 50 per cent share in the family home.
Ms Jones argued that the original intention to share the property jointly had been altered because of the couple’s separation, Mr Kernott’s purchase of a new home in his sole name, and her subsequent responsibility for the outgoings on the house and for the children’s maintenance. The judge at first instance and the High Court accepted that the partners had contributed unequally to the property and that fairness demanded that their beneficial shares should be unequal and awarded 10 per cent to Mr Kernott and 90 per cent to Ms Jones.
Mr Kernott appealed to the Court of Appeal. The Court of Appeal granted the appeal and held that the original agreement to share the property equally had not been displaced by the couple’s later conduct.
Wall LJ said:
I described this case as a cautionary tale. So, in my judgment, it is. The purchase of residential accommodation is perhaps the single most important financial transaction which any individual transacts in a lifetime. It is therefore of the utmost importance, as it seems to me, that those who engage in these transactions, and those who advise them, should take the greatest care over such transactions, and must—particularly if they are unmarried or if their clients are unmarried—address their minds to the size and fate of the respective beneficial interests on acquisition, separation and thereafter. It is simply impossible for a court to analyse personal transactions over years between cohabitants, and the costs of so doing are likely to be disproportionate in any event. Cohabiting partners must, it seems to me, contemplate and address the unthinkable, namely that their relationship will break down and that they will fall out over what they do and do not own.
If this appellant and this respondent had truly intended that the appellant’s beneficial interest in the property should reduce post separation, or if the property was to belong to the respondent when the appellant acquired his own house, they should have so decided and acted accordingly by adjusting their beneficial interests in the property. I cannot spell such an intention out of their actions.
Ms Jones appealed; the Supreme Court granted the appeal and restored the original order in her favour. It held that where the property was in joint names and one of the partners maintained that the intention to share the property equally had changed after the original (p. 84) purchase of the property, a court would have to decide whether there was such an intention and, if so, what the new division of the beneficial interest should be. There would be no difficulty if the couple had expressly agreed to such a change but that is a rare occurrence. More usually, a court would have to infer the couple’s intention from their conduct and in an objective way—not an easy task. The Supreme Court acknowledged that if a court is unable to infer the intention, in might have to resort to imputing an intention to them. This, according to the court, means deducing what the couple, as reasonable people, would have intended, had they put their mind to the question of their respective shares of the beneficial interest. In so doing, a court would have to take into account the whole course of dealing between the partners during the relationship. This, according to the Supreme Court, is not the same as making a decision based on fairness—the analogy comes to mind of how many angels can dance on the head of a pin!
4.48 There remains some confusion about Baroness Hale’s emphatic statement that the decision in Kernott only applies where property is purchased in joint names. One can only assume that she was referring to the maxim that equal division of the beneficial interest, in the absence of any supervening events, will be the assumption in such cases. As was discussed earlier, and as Baroness Hale herself noted as a ‘curious feature’, where the property is in the sole name of one partner, there will be no assumption that the property should be shared equally. She accepted that once a Rosset-compliant agreement has been established, the courts have been taking a holistic approach to quantification for some time.
A word of consolation
4.49 Readers who feel, and quite justifiably so, that decisions in the field of informal trusts have been somewhat confusing may be consoled by the words of Peter Gibson LJ in Drake v Whipp (1996) when he said in the context of informal trusts of the family home:
4.50 Proprietary estoppel is based on the principle that it is inequitable for the legal owner of property to deny a right in or over that property to anyone who has acted to his or her detriment, in reliance on the legal owner’s implied or explicit representation relating to the grant of rights in or over the property.
4.51 The doctrines of proprietary estoppel and constructive trusts bear a remarkable resemblance to each other; the latter has its roots in the former, and the two doctrines are often pleaded in the alternative. In all cases of a successful claim of a constructive trust of a beneficial interest in property, a claim based on proprietary estoppel would also succeed (see Q v Q (2008)). The reverse is not so. Judicial statements have been made to the effect that the two doctrines overlap or are even identical (see eg Turner v Jacob (2006); Oxley v Hiscock (2004); Grant v Edwards (1986)). This is clearly incorrect, as Lord Walker emphasized in Stack v Dowden (2007). There is a risk that if the constant attempts to merge the doctrines are successful, the (p. 85) current requirements to ground an estoppel will be replaced by constructive trust principles. If this happens and even if the holistic approach in Stack (2007) continues to prevail, the greater flexibility of proprietary estoppel will be lost.
Nature of the representation
4.52 The decisions involving explicit representations are rare.
In Pascoe v Turner (1979), Mrs Turner had been Mr Pascoe’s housekeeper and subsequently cohabited with him. After ten years of living together, he eventually informed her that he was leaving her to move in with another woman. Mrs Turner was very distressed, but became somewhat consoled when Mr Pascoe informed her clearly, in front of witnesses, that the house and everything in it was hers. The court found that the explicit representation, albeit made in emotional circumstances, gave rise to an estoppel-based right.
Similarly, in S v S (2006), the court accepted that the husband had made an explicit representation to his wife which allowed her to claim an estoppel-based right. He maintained that he would relinquish his charge on the family home, leaving her with the entire beneficial interest in the property which he had been granted during the divorce proceedings, in return for his wife’s promise to give up all claims to past outstanding maintenance payments as well as foregoing any future claim for maintenance (see also Suggitt v Suggitt (2011)).
4.54 Most representations will not be quite so clear; family relationships tend to involve more hazy and imprecise arrangements which the parties may find difficult to recall during the bitter arguments which tend to accompany estoppel claims. They may be able to persuade the court that a representation may be inferred from all the circumstances of the case, taking into account a range of factors including, inter alia, the extent of the claimant’s detriment, the nature of the parties’ relationship, and their respective housing needs.
In Turner v Jacob (2006), Kim Jacob was Mrs Turner’s only child. She was born with severe hearing problems and was described by counsel as having intellectual limits. She was not financially astute. Her mother was described as:
… a strong minded and outgoing person with a large circle of friends. She had a very successful career as a stunt artiste and appeared in eight James Bond films as well as the films of Batman, Superman and Robin Hood. She was by all accounts an expert horsewoman who obviously had little or no fear. Many of her stunts involved high falls, chases on horseback and spectacular car accidents. Mr Turner [her husband] said that her job as a stunt woman made her very resolute and that she was able to compete and succeed in what was a very male dominated industry.
Prior to her death, Mrs Turner had had a very close and protective relationship with Kim. When Kim married a man who mistreated her, her mother rescued her and bought a house (p. 86) and renovated it to enable her daughter to escape from her marriage. All she told Kim was that she had bought a house for her. The daughter spent around £2,000 on further renovations. After Mrs Turner’s death, her husband, Kim’s stepfather, inherited the property left to him in Mrs Turner’s will which had been hastily executed one month before her death.
The court found that Kim had not been led to expect that the house was to be hers and that there was nothing in the circumstances which would make it inequitable or unconscionable for her claim to be denied (see also Walsh v Singh (2010)).
The decision was made against a background of complex property dealings involving the mother and the daughter, minimal detriment on the daughter’s part, and adequate provision for her in her mother’s will.
Patten J stated:
The most that I am prepared to accept is that in early 2003 Mrs Turner said to Kim [the daughter] (and perhaps others) that she had bought a house for her … It seems to me that … a mother’s friendly and concerned gesture towards her daughter has been given a significance out of all proportion to what it can properly bear.
In Warnes v Hedley (1984), Mrs Warnes had purchased a property and allowed her son and daughter-in-law to live in it prior to the birth of their first baby. The couple substantially renovated the property. Mrs Hedley admired the renovations but remained silent about the basis on which they were occupying the property.
The couple’s relationship broke down and the daughter-in-law brought a claim based on proprietary estoppel. The Court of Appeal rejected her claim. By the time it came before the court, the couple’s marriage had broken down and the mother-in-law was in financially straitened circumstances. She needed the house for her own occupation. The court suggested that the house:
… was bought as a family home for a young married couple by a generous mother on the one hand, mother-in-law on the other, knowing that Mrs Hedley was pregnant with her first child. I am in no way surprised, in those circumstances, that Mr and Mrs Hedley did work on the house not only to provide nursery accommodation for young Jonathan when he arrived, but also to redecorate the premises and to modernise the kitchen. There was in fact very little direct evidence about what Mr and Mrs Hedley believed or understood about their interest in the premises. What I think one can say on the evidence is that the work, which they ordered, was just as consistent with a belief that they had a licence from Mrs Warnes, a belief that the house was bought for them to occupy as licensees.
4.57 The detriment in estoppel claims, whether financial or otherwise, need not be referable to the property but must be capable of financial quantification (see Stallion v Albert Stallion Holdings (Great Britain) Ltd (2010)). It may well be at a level which would be insufficient to satisfy the requirement in the context of a constructive trust. Mrs Turner in Pascoe v Turner (1979), for example, spent very little on her improvements to the property and Cumming (p. 87) Bruce LJ recognized that this expenditure could not have given rise to a constructive trust of the property but he was prepared to grant an estoppel right.
4.58 The courts have accepted a very wide range of activities as evidence of detriment in the estoppel context; these include work on the property, care of the representor, working without wages, expenses of relocating to another country, and a disadvantage suffered by a close partner of the claimant.
In Re Basham (Deceased) (1987), the claimant was the stepdaughter of the deceased. She had worked for him over a 30-year period helping to run a number of public houses and a garage. She had received no payment for this work. The claimant, her husband, and their children all had a very close relationship with the deceased. On several occasions when the claimant and her husband considered moving away from the area because the husband had been offered good employment elsewhere, the deceased had dissuaded them from doing so. After the death of the claimant’s mother, the claimant had cared for the deceased in his retirement. He told her that she would receive his cottage on his death in return for all her help. The court accepted that the claimant had acted to her detriment.
4.60 Detriment is not to be judged simply at the time of the representation because often the claimant is actually receiving a benefit at that point. It is only at the moment when the representor reneges on the representation that the conduct, which took place when the representation was made, may be viewed as detrimental.
4.61 In familial situations, it is often the case that detriment can be viewed as related to a family obligation rather than specifically in reliance on any representations made to the claimant. The courts have recognized the dual nature of family behaviour and have tended to be liberal in their interpretation of reliance. They have accepted that once a claimant has acted to his or her detriment, it will be assumed that it was in reliance on the representation, and it is for the legal owner to prove otherwise.
In Greasley v Cooke (1980), Miss Cooke was the cohabitant of Mr Greasley who ran a butcher’s shop. She had looked after the household for some 40 years, having arrived there aged 16 years. She had cared for Mr Greasley’s mentally ill sister, Clarice, and helped in the shop. She was never paid for her services. He and his brother assured her that she would always have a home in the family property. After Mr Greasley’s death, the family attempted to evict her.
Lord Denning maintained that the representations made to her:
… were calculated to influence her, so as to put her mind at rest, so that she should not worry about being turned out. No one can say what she would have done if Kenneth and Hedley had not made those statements. It is quite possible that she would have said to herself: ‘I am not married to Kenneth. I am on my own. What will happen to me if anything happens to him? I had better look out for another job now rather than stay here where I have no security’. So, instead of looking for another job, she stayed (p. 88) on in the house looking after Kenneth and Clarice. There is a presumption that she did so relying on the assurances given to her by Kenneth and Hedley. The burden is not on her but on them to prove that she did not rely on their assurances.
Similarly, in Griffiths v Williams (1978), Mrs Williams looked after her elderly sick mother, who had repeatedly assured her that she would be allowed to live in the house for the rest of her life. She spent £2,000 on improvements, which consisted of putting in a bathroom and an indoor lavatory, rewiring the house, and undertaking external renovations to the property.
The Court of Appeal recognized that there were inevitably dual motives in these types of situation:
It was clear that Mrs Williams—and I think this would apply to most sensitive people in her position—was reluctant to admit, even to herself, that in spending her own money on housekeeping and house improvement, she was thinking predominantly of her own inheritance rather than the care and comfort of her mother. What she did say, however, was that had it occurred to her that her enjoyment and benefit of these improvements, or rather of the house as improved (a house that she had always regarded as her home) would be limited to her mother’s life span, she would have had to think whether she was not obliged to look more closely to her own future … It was equally clear, however, that none of this occurred to her at the time, or perhaps even not until it was put to her in this court.
Wide range of remedies
4.64 One of the greatest advantages of a successful claim based on proprietary estoppel is the ability of the court to grant whatever remedy it thinks fit (see Plimmer v Wellington Corporation (1884)). It is a particularly appropriate approach in family situations. Although the courts look at the nature of the representation in deciding on a remedy, they have accepted that the only feasible and appropriate remedy based on all the circumstances of the parties, may be to grant the claimant an alternative remedy from that which he or she had been led to expect.
4.65 The grant of a fee simple is the most valuable of all the remedies available in the context of proprietary estoppel.
In Pascoe v Turner (1979), the court granted Mrs Turner the fee simple of the property when Mr Pascoe and his ‘heavies’ attempted to evict her. Cumming Bruce LJ took the view that:
… the equity cannot here be satisfied without granting a remedy which assures to the defendant security of tenure, quiet enjoyment and freedom of action in respect of repairs and improvements without interference from the plaintiff. The history of the conduct of the plaintiff in relation to these proceedings leads to an irresistible inference that he is determined to pursue his purpose of evicting her from the house by (p. 89) any legal means at his disposal with a ruthless disregard of the obligations binding on conscience. The court must grant a remedy effective to protect her against the future manifestations of his ruthlessness. It was conceded that if she is granted a licence, such a licence cannot be registered as a land charge, so that she may find herself ousted by a purchaser for value without notice. If she has in the future to do further and more expensive repairs she may only be able to finance them by a loan, but as a licensee she cannot charge the house. The plaintiff as legal owner may well find excuse for entry in order to do what he may plausibly represent as necessary works and so contrive to derogate from her enjoyment of the licence in ways that make it difficult or impossible for the court to give her effective protection.
(See also Suggitt v Suggitt (2011).)
An estoppel licence
4.66 Where the court believes it appropriate to grant a right limited to the lifetime of the estoppel claimant, it may grant a licence.
In Matharu v Matharu (1994), Mrs Matharu believed that she and her late husband had acquired the fee simple of the property from her father-in-law. The court gave her a licence to occupy the property for the rest of her life. It was accepted that the prime obligation of the father-in-law had been to his son, implying that had the claim been his, he might have been granted the fee simple. Now he was dead, it was more appropriate simply to protect Mrs Matharu for her lifetime.
4.67 Family relationships, which begin happily, often end miserably, and it may be unreasonable to expect the parties to continue to live together, even if that is what was envisaged by the original representation.
In Dodsworth v Dodsworth (1973), a sister persuaded her brother and his wife to live with her in her bungalow on their return from Australia. The couple spent money on improvements to the bungalow, encouraged by the sister to believe that they would be able to share it with her as their home for as long as they wished to do so. Eventually, the relationship between the parties broke down. The sister became anxious to sell the bungalow and buy a smaller and less expensive one for herself. She could not do this if her brother and his wife were entitled to stay in the bungalow rent-free. She would therefore have to continue sharing her home for the rest of her life with the couple, with whom she was at loggerheads. The couple maintained that even if their expenditure was reimbursed, it would be insufficient to allow them to purchase a new home because property prices had appreciated since they first went to live in the bungalow.
The Court of Appeal was reluctant to grant the couple a licence as a remedy, even though the sister had died by the time the case reached the court. To allow the couple to remain in the bungalow, alone, would give them more than they had been led to expect from the original representation. They were awarded monetary compensation to the extent of their expenditure on the property, including an amount for their time and labour.
(p. 90) A problematic remedy
4.68 Although the flexible nature of proprietary estoppel makes it eminently suitable in the resolution of disputes in the family home, there are some disadvantages to it. Because the purpose of proprietary estoppel is to compensate the claimant for the detriment suffered, the doctrine can only be pleaded once the representation has been withdrawn. This means that claimants have no certainty, prior to the withdrawal, what their rights, in or over the property, are. A claimant is dependent on either the goodwill of the legal owner to continue to honour the representation or, if it is withdrawn, on the court’s generosity once the claim is brought before it. A claimant may be fortunate and enjoy the court’s grant of a fee simple, but may be unlucky and be given minimal compensation. Where the remedy is a licence, it is personal to the claimant and is not transferable to a third party which limits the possibilities for a claimant to move elsewhere and make a new start.
Matrimonial Proceedings and Property Act 1970, s 37
4.69 This little used provision allows married or engaged couples, either of whom have a beneficial interest in property, to acquire an enhanced share in that property if they have contributed substantially in money or money’s worth to the improvement of the property without having to prove an agreement or representation. The provision is subject to the existence of any agreement between the couple to the contrary.
4.70 What constitutes an engagement is left undefined. The status, as was noted in Chapter 2, is somewhat problematic; it is often a euphemism for long-term cohabitation.
In Laethem v Brooker (2005), the court rejected the woman’s claim that she was engaged to the defendant as ‘wishful thinking’ in spite of the existence of a diamond and sapphire ring. The parties had cohabited over a long period and the defendant had subsequently married another woman. In the event, the non-existent engagement was irrelevant because the court granted the woman a beneficial share in the disputed properties based on a constructive trust.
Civil Partnership Act 2004, s 65
The Law Reform (Miscellaneous Provisions) Act 1970, ss 2, 3; Civil Partnership Act 2004, s 74(5)
4.73 The Law Reform (Miscellaneous Provisions) Act 1970, s 2 makes provision for a couple who are engaged to be married but terminate their engagement to resolve their property (p. 91) ownership in accordance with any of the statutory provisions available to married couples. Section 3 provides that gifts exchanged on condition that the couple marry must be returned to the donor.
4.74 The CPA 2004, s 74 makes similar provisions for civil partners with respect to property ownership.
4.75 Decisions involving implied contracts relating to occupation of the family home are rare. The following two decisions show two different approaches of the courts in dealing with implied contracts.
In Tanner v Tanner (1975), a young woman, Miss McDermott (who called herself Mrs Tanner), gave birth to twins after a relationship with Mr Tanner, a married man with children. He was a milkman by day and a croupier by night. Mr Tanner purchased a house, which he divided into flats. He allowed Miss McDermott to live with the twins in one, and he leased the other. Miss McDermott collected the rent for him from the tenant. It seemed that Mr Tanner became easily bored with the women who entered his life: he left Miss McDermott, divorced his wife, and went to live with a married woman whom he subsequently married. He wanted to remove Miss McDermott from the house so that he could live there with his new wife who was pregnant with his child.
Lord Denning maintained that:
This man had a moral duty to provide for the babies of whom he was the father. I would go further. I think he had a legal duty towards them. Not only towards the babies but also towards their mother. She was looking after them and bringing them up. In order to fulfil his duty towards the babies, he was under a duty to provide for the mother too. She had given up her flat where she was protected by the Rent Acts—at least in regard to rent and it may be in regard also to security of tenure. She had given it up at his instance so as to be able the better to bring up the children. It is impossible to suppose that in that situation she and the babies were bare licensees whom he could turn out at a moment’s notice. He recognised this when he offered to pay her £4,000 to get her out.
He held that, from an inference of all the circumstances, Miss McDermott had an implied contractual licence to live in the house with the children for as long as they were of school age and the home was reasonably needed by her and the children. By the time the case came before the Court of Appeal, Mr Tanner had forced Miss McDermott to leave the property. Therefore, the court decided to compensate her for the loss of her licence. The decision appears to be closely related to those based on proprietary estoppel.
One year later, in Horrocks v Forray (1976), the Court of Appeal was far less sympathetic. The defendant was the mistress of a wealthy married man who died very suddenly in a car accident. The couple had a daughter together and the man had a son by his wife. During the (p. 92) relationship, the mistress was married very briefly to another man and had a child by him. The mistress eventually moved into a house purchased by her lover in his sole name. He told his solicitor that he was buying it to give his mistress and child some security. He contemplated transferring the house into his mistress’s name but decided against it because of the high cost of stamp duty and capital gains tax. He also considered creating a trust for the benefit of his daughter but, again for tax reasons, he decided not to.
The wife did not learn of the existence of her husband’s mistress and the house until after the husband’s death. The executors wanted the property to be sold because, as a result of the husband’s generosity towards his mistress, his estate would otherwise be insolvent.
The mistress maintained that, from all the circumstances surrounding her relationship with her lover, a contract should be inferred. She had subordinated her life, and choice of place to live, to that of her lover in return for his implied agreement that he would maintain her and the children and provide them all with a permanent home. She maintained that this implied contract gave rise to a licence, the terms of which were that she could remain in the house either for her life or for the period of her daughter’s full-time education, or for as long as she and the daughter reasonably required to be housed.
The Court of Appeal ruled in favour of the executors and granted them possession of the property. It held that:
In order to establish a contract, whether it be an express contract or a contract implied by law, there has to be shown a meeting of the minds of the parties, with a definition of the contractual terms reasonably clearly made out, with an intention to affect the legal relationship: that is that the agreement that is made is one which is properly to be regarded as being enforceable by the court if one or the other fails to comply with it; and it still remains a part of the law of this country, though many people think that it is time that it was changed to some other criterion, that there must be consideration moving in order to establish a contract. In the circumstances no contractual licence, either inferred or express, could be inferred from the conduct of the couple. There was no meeting of minds or any definition of the terms of the contract.
Scarman LJ accepted that it was not contrary to public policy for a couple who had had a child born out of marriage to reach an agreement for the maintenance of the mother and child. But it did not follow automatically that, in all such cases, an agreement would be inferred. He attempted to distinguish the case of Tanner v Tanner (1976) as one in which the parties’ relationship had broken down and the implied agreement was made for the future of the children. In the present case:
… right up to the death of the man there was a continuing, warm relationship of man and mistress. He was maintaining his mistress in luxurious, even, so the judge thought, extravagant, style, and, we now know, in a style beyond his means; his estate is now at risk of being insolvent … [W]hatever relationship did exist between these two could as well be referable to the continuance of natural love and affection as to an intention to enter into an agreement, which they intended to have legal effect.
Scarman LJ maintained that:
Here was a generous provision made for a woman who was still the mistress and for the child of that relationship. It was generous beyond what one would reasonably (p. 93) expect the man to accept a legally binding obligation to provide. It was generous, not because he was bound, or was binding himself, to be generous, but because he chose to be generous to the woman for whom there was a big place in his heart.
It must be questioned why a woman should be penalized and lose her family home on the death of her lover because the court interpreted a man’s generosity as incompatible with the finding of a contract.
Family Law Act 1996, Part IV
Statutory right of occupation for spouses and civil partners
4.78 Where a spouse or civil partner has a beneficial estate or interest in, or contract to occupy, their family home, the FLA 1996, s 30 provides the other spouse or civil partner, who does not possess any of these rights, with a statutory ‘home right’. This right, which might be broadly termed a right of occupation, includes a right not to be evicted from the home except by court order and a right, with a court order, to re-enter the home if they have been excluded from it.
4.79 The right is personal to the spouse or civil partner and may not be transferred to a third party. It comes to an end on: divorce, dissolution of a civil partnership, annulment of a marriage or civil partnership, death of a spouse or civil partner, or where it is formally terminated by agreement between the partners, usually when the home is sold. The right cannot be translated into money which limits the potential for a spouse or civil partner to leave the family home and purchase an alternative residence.
4.80 Where a spouse or civil partner, who has a home right, applies for an order under the FLA 1996, s 33, the court will exercise its discretion in accordance with the broad provisions of s 33(6), (7). These provisions are considered in detail in Chapter 5.
The family home
4.81 A family home, for the purposes of the FLA 1996, is a property, or properties in which the spouses or civil partners have lived together. They may have two or more family homes, and the definition of family home includes not only apartments and houses, but also caravans and boats, indeed any structure in which two people may live together as a family. An interesting example of the Canadian courts’ approach to the definition of a family home is to be found in the following case.
In Clark v Clark (1984), the Ontario Supreme Court gave the wife a right to occupy the family yacht because the parties had used it as an alternative matrimonial home during holidays. The court explained that it could see no reason why the fact that the alternative home was a mobile one should prove to be problematic. The judge said:
I frankly see no reason why the extra home or cottage should therefore be restricted to a question of evaluation of accommodation or mobility, once the principle of an (p. 94) alternative home has been established. The fact that that alternate home moves in some way, and that it may be difficult to locate under some circumstances, or that it may have some restrictions of accommodation, I think is not necessarily relevant, as long as it is shown that the general use of the property or thing has been by the family as an alternative residence while the family was on vacation.
The court accepted that it could make no precise order relating to the timing of the wife’s occupation of the matrimonial home given the vagaries of weather at sea. She should simply return the yacht on the date given, and at whatever time the tides made it possible to enter the harbour.
Effect of the statutory right on third parties
4.82 One of the most important attributes of the home right is that, once it has come into existence, it acts as a charge on a spouse or civil partner’s estate or interest in the home, and it has the potential to bind third parties who acquire the property (FLA 1996, s 31). The charge must, however, be registered under the Land Registration Act 2002, s 31(10) (or, in unregistered land, under the Land Charges Act 1972, s 2(7), as a class F land charge), if it is to be enforceable against third parties. Only one right can be registered even if there is more than one family home. Once the right is registered, it will normally be protected against a subsequent third party who obtains an estate or interest in it. However, the FLA 1996, s 34(1)(a) provides that such a third party is in the same position as the spouse or civil partner from whom he or she acquired the property. Thus, the court may exercise its discretion under the FLA 1996, s 35(6) and determine the competing rights of the spouse or civil partner who has registered the family home right, and the third party. Such decisions are rare (see eg Kaur v Gill (1988)).
Potential for manipulation
4.83 Where the family home is to be sold, the spouse or civil partner who has registered a home right will normally agree to arrange to remove it from the register prior to completion of the sale, because a failure to do so will almost certainly prevent sale. Often another family home is to be purchased and a home right will be subsequently registered against it. Spouses have, however, attempted to register a right or refused to have a registration removed because they wished to use it as a bargaining tool.
In Barnett v Hassett (1981), a man exchanged contracts for the purchase of a house intended to be his future matrimonial home. Before the sale was completed, he married and moved into his wife’s house on a temporary basis. Soon after, the marriage broke down and he moved out. He was unable to complete the purchase of what was to have been the future matrimonial home and was forced to forfeit his deposit. The husband believed that, as the wife had agreed to purchase their proposed matrimonial home jointly with him and had only reneged on the agreement when their relationship broke down, she should share in his financial loss. The wife decided to sell her own property, at which point the husband registered an occupation right against it. The wife applied to the court to have the registration set aside.
The court agreed to her request on the basis that the purpose of the right was to protect occupation. The husband did not wish to occupy the house; he was merely registering the charge to put pressure on his wife to share the financial loss he had incurred.
(p. 95) Bankruptcy
4.85 The family home is often used to secure loans, which means that the family’s occupation is put at risk if the loan is not repaid and bankruptcy follows. Even where a bankrupt’s partner has a beneficial interest in the property which is binding on the trustee in bankruptcy, the latter may apply for an order for sale of the bankrupt’s property under the Trusts of Land and Appointment of Trustees Act 1996, s 14. The trustee in bankruptcy may only take the bankrupt’s share of the property on sale. The share of any other person, will remain intact. However, that share will often be insufficient to purchase another family home.
4.86 Where a spouse or a civil partner has a right of occupation under the FLA 1996, Part IV which is a charge on the bankrupt’s property, the trustee in bankruptcy may make an application for sale.
4.87 In any such application for sale under the FLA 1996, s 33, or for an order under the Trusts of Land and Appointment of Trustees Act 1996, s 14, or the Insolvency Act 1986, ss 335A and 336 apply respectively. Both sections provide that in determining whether to order sale or not, the court must take into account the interests of the creditors, the conduct of the non-bankrupt partner relating to the bankruptcy, the needs of this partner, the needs of any children, and all the circumstances of the case other than the bankrupt’s needs. In addition, if the application for sale is made after the end of one year following entry of the bankrupt’s property into the hands of the trustee in bankruptcy, the court must assume that the creditors take precedence unless the circumstances are exceptional.
In Barca v Mears (2004), the court questioned whether the narrow approach to exceptional circumstances as laid down in Re Citro (1991) was consistent with Art 8 of the ECHR (see also The Official Receiver for Northern Ireland v Rooney and Paulson (2008)).
The court held that in the general run of cases, the creditors’ interests would prevail. However, it must be left open to the court to define what was exceptional in any given circumstances. Exceptional circumstances would not be limited to those cases where the consequences were unusual in the sense of going beyond the usual consequences of bankruptcy.
In Hosking v Michaelides (2004), it was argued that the meaning given to the concept of exceptional circumstances in the past had been too restrictive and was incompatible with Art 8 of the ECHR. The court rejected this view and held that to be exceptional the circumstances need not be unique, unprecedented, or very rare; but they cannot be ones that are routinely or normally encountered.
The exceptional circumstances relied upon by Mrs Michaelides concerned her physical and mental health. She had overdosed on drugs, was an alcoholic, emotionally unstable, and had a tendency to act impulsively. Her psychiatrist gave evidence that Mrs Michaelides was unable to cope with any stress and trauma and that she reacted in a way which was dissimilar (p. 96) to that of an ordinary person faced with similar circumstances. The sale of her family home would exacerbate her emotional difficulties, which would be dangerous for both her and her children.
The court, somewhat hesitantly, found that these were exceptional circumstances and deferred sale, but only for six months. It regarded its decision as generous; the creditors’ needs should prevail over those of Mrs Michaelides and her children.
In Re Bremner (A Bankrupt) (1999), the trustee in bankruptcy applied for an order for sale of the bankrupt’s home and an order terminating the wife’s right of occupation in the property. The wife was aged 74 years; she was looking after her husband who was 79 years old. He had suffered a stroke and had inoperable cancer. The wife accepted that the court could not take into account the needs of her bankrupt husband but argued that her desire to care for him in the last few months of his life was a separate need of her own. She had offered to agree to an order for sale on condition that the marketing and sale of the property did not begin until three months after the bankrupt’s death, which was expected within six months.
The court held that the circumstances here were exceptional. The fact that the wife was caring for her dying husband, and that the sale of their home would make that care impossible or more difficult, justified deferring sale in spite of the creditors’ needs. The deferral of sale was likely to be short. With good Jesuitical reasoning, the court accepted that its recognition of the wife’s overwhelming desire to care for her husband did not amount to taking the bankrupt’s own needs into account. It had only considered the bankrupt’s state of health to the extent that it was relevant to the distinct needs of his wife in satisfying her wish to look after her dying husband. According to the court:
The circumstances in Re Haghighat (A Bankrupt) (2009) were extremely tragic. The court recognized this and deferred an order for possession of the family home, requested by the trustee in bankruptcy, against a bankrupt husband. The conditions in which the bankrupt lived with his wife and three adult children were severely overcrowded. The eldest child had congenital quadriplegic cerebral palsy, severe learning disabilities, and epilepsy. He was doubly incontinent, could not speak, used a wheelchair, and had to be carried between his bed, his chair, and the shower. The wife slept in the same room as him and gave him 24-hour care.
The husband applied to the court, under the FLA 1996, s 33, and asked that the possession order not be granted because the circumstances were exceptional within s 336(5), for his wife, and s 337(6), for himself. The trustee maintained that the possession order should be made but deferred for a period of three or six months. The local authority would then have to re-house the family because it would be homeless. The trustee accepted that this would cause considerable disruption to the family in the short term.
(p. 97) The court deferred the order for possession for three years, or three months if the disabled child ceased to live permanently in the family home. The court accepted that these were exceptional circumstances and not merely the normal:
Even if the property were to be sold, there would still be a substantial shortfall to pay the bankrupt’s debts. The wife had no income or capital of her own and lived on state benefits; she had not contributed to the bankruptcy in any way.
The deferred order would give the local authority time to make provision for the eldest child and for the wife to be re-housed in suitable accommodation, and was the best possible just and reasonable balance between the competing interests of all those concerned.
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1 What advice would you give to an unmarried couple who wish to purchase a family home for the first time?
2 Will the decision in Kernott v Jones (2012) help a cohabitant like Mrs Burns in Burns v Burns (1984) to obtain rights in her family home?
3 William and Xavier are a same-sex couple who are not registered civil partners. In 1990, they purchased a property and registered the legal title in both their names; they had no discussions as to how the beneficial interest should be shared. Xavier borrowed 75 per cent of the purchase price from his employer and William used a legacy from his parents to fund the remainder of the purchase price. After they moved into the property, William gave up his job as an investment banker and took responsibility for planning, planting, and maintaining the couple’s large garden. In 2005, Xavier left to work abroad and William did not want to go with him. The couple decided to live apart and sell the property and buy two separate properties, one for each of them.
Advise them how the court is likely to divide the beneficial interest between them if they are unable to agree on their respective shares in the property. Would your answer be any different if William and Xavier had entered into a registered civil partnership?
4 Critically analyse the decision in Cox v Jones (2004).
5 Eliza and her sister, Finty, purchased a house and registered the legal title in both their names. They failed to specify how they would share the beneficial interest in the property. Eliza provided 40 per cent of the purchase price and Finty 30 per cent. The remaining 30 per cent was provided by a loan by way of mortgage to Eliza who was responsible for all the repayments. The property was to be let to a tenant but would ultimately provide a home for Eliza when she returned from working in France.
Eliza and Finty had an argument and, as a consequence, Eliza decided that she wanted the property to be sold. Finty agreed on condition that she received a 50 per cent share of the proceeds of sale. Eliza objected and maintained that Finty should receive a lesser share.
6 James, a merchant banker, was the owner of a flat in London. Kate, a legal secretary and James’s long-term girlfriend, lived in a flat leased to her on an annual basis. In 2003, in order to give Kate some security, James purchased her flat for her. They continued to live separately until 2006 when James invited Kate to live with him in a farmhouse in the country, also owned by him. She accordingly quit her job and moved to the farmhouse. Kate did not seek new employment, but spent her time supervising the renovation work on the farmhouse, overseeing the building work, and carrying out the decorating herself. James was unable to do this himself owing to his commitments in London on weekdays. In 2009, Kate and James both sold their flats in London and pooled the proceeds to (p. 99) purchase a terraced house in London. The house was registered in Kate’s name alone because James thought that she should have some security if he were to die before her, but Kate insisted that everything they owned should be shared by both of them. James used the house whilst he was working in London, and Kate very rarely visited it; she considered the farmhouse to be her real home. In 2010, Kate and James had a baby. Shortly after the birth she discovered that Laura had moved into the house in London to live with James, and that James proposed to sell the farmhouse. Kate would like to stay in the farmhouse with Angelica, their daughter.
Advise Kate what rights, if any, she might have in respect of both the farmhouse and the terraced house in London.