Comments on: Stack v Dowden revisited

By: Nearly Legal

Nearly Legal — Wed, 18 Jun 2008 19:24:14 +0000

David, that is a very interesting question, and I strongly suspect that the answer is that there is no such research. We are surely in the realm of commonsense and the reasonable observer. Notoriously reliable.

That said, when looking at a scale ranging from complete co-mingling of all income to completely seperate income and expenditure, I would be surprised if the result wasn’t some form of bell curve. I would expect ‘I’ll pay the rent/mortgage, you pay the bills/household costs’ to be somewhere near the peak down the right hand side slope.

My understanding was that ‘unusual separation’ of finances became ’strong’ evidence only in the absence of anything more clearly determinative of intention. If one is left with the need to infer intention, then course of conduct is what one must perforce fall back on.

I’m not surprised the judge had a fit in your anecdote. Surely where there is joint title, the starting position is 50/50, absent any other declaration. If someone seeks to establish a different share in equity, then I’d say the burden of proof has to be on them, otherwise is there any point to joint title existing at all?

And this is the situation at issue - the starting point is the presumption of 50/50 that arises from joint title. ‘Starting with resulting trust’ - as in differential contribution to purchase price, means ignoring joint title altogether, surely?

A lot more education and advice on how to hold in specified shares as tenants in common would be a good thing, granted.

By: David Giles

David Giles — Wed, 18 Jun 2008 17:40:04 +0000

Is anyone out there aware of reliable research on what is or not the “usual” treatment of finances by cohabitees? How do judges or lawyers know what is usual, and why should “unusual” seperation of finances be strong evidence of the cohabitees’ intentions towards the division of ownership of house? Lord Neuberger’s speach on this issue is surely the correct analysis. The starting point in cases of differential contributions to purchase price ought to be resulting trust, and the party who wishes to show a diferent intention under constructive trust principles should shoulder the burden of proof.
Stack v Dowden is being applied to cases that in my view it has no relevance to. For example, the case of the boyfriend who moves into a house already owned by his girlfriend, but who subsequently is registered as joint legal owner. I know of one judge who almost had a fit when it was submitted in argument that the boyfriend had to prove an entitlement to a share on constructive trust principles and that the starting point was not 50:50.

By: Lost

Lost — Thu, 08 May 2008 03:02:16 +0000

Ah good old trusts of homes, always comes up on the trusts exam paper, and is reasonable!

Hmm not to sure about the common intention construction trust myself, Lloys Bank v Rosset, is also a bit of a bitch to understand, what with that Lord Bridge calling a constructive trust a resulting trust and then the academics argueing over whether Lord Bridge really was trying to merge proprietary estoppel and constructive trusts together. So glad I never have to study property law again!

Thought I would contribute

By: Nearly Legal

Nearly Legal — Thu, 24 Apr 2008 19:08:29 +0000

The separation of the finances in Stack v Dowden was unusual for a cohabitee/joint title set up. The point is that inferring shared intentions is done from the whole course of conduct towards the property and finances. In Stack, not only the purchase price but all of the parties’ finances were clearly separate and often clearly hypothecated.

This is unusual; most often, without any particular discussion or decision, someone will pay house insurance, council tax, maybe the mortgage; someone else will buy food, the kids’ clothes, maybe some DIY costs. There is not, very often, a joint account for ‘the household’. This was not the case in Stack, see para 91.
In these situations, as the Court found in Fowler, there is no shared intention to be found that financial liability for the costs of the home be X’s responsibility (or divided in proportion a:b). So it is not sufficient evidence of shared intention of division of interest to enable a rebuttal of the presumption of equal shares to be inferred. The starting point is 50/50 on a joint title, after all.

Sticking solely with purchase contributions is to take the resulting trust approach taken by the first order judge in Fowler, which is firmly over-ruled here as in Stack.

By: simply wondered

simply wondered — Thu, 24 Apr 2008 10:29:12 +0000

it was indeed noted that stck v dowden involved an unusual separation of finances. however, while it suited the court to say that and seemed to result in a just outcome, i don’t think it is actually true on the facts.
the court loooks to have placed great weight on the fact that the man could have done more (in fact the logical inference was that if he had got off his arse a bit more he might have got his 50% - can’t quite point you to this phrase in the judgement alas). i think the insistence on ‘unusual factors’ was a denningite smokescreen to try and see justice done.
can anyone point to a single aspect of the financial arrangements between the parties in stack and dowden that could reasonably be called ‘unusual’. she put in c 2/3rds of the cash and she got out about that.

By: Family Lore

Family Lore — Tue, 30 Nov 1999 00:00:00 +0000

a seed of doubt was sown by their Lordships as they found that Ms Dowden had discharged that burden. Well, it is now becoming clearer just how heavy the burden really is. In Fowler v Barron [2008] EWCA Civ 377 (hat-tip to Nearly Legal, who hasalready postedon this), Mr Barron put down nearly £30,000 towards the purchase price, paid the mortgage, the council tax and utility bills and yet the Court of Appeal found that he still hadn’t rebutted the presumption of equal shares. The point was that, unlike in

By: Family Lore

Family Lore — Tue, 30 Nov 1999 00:00:00 +0000