Comments on: Stack v Dowden revisited

By: dave

dave — Sun, 01 Nov 2009 23:48:51 +0000

But the CT could have been made perfectly principled as a jurisdiction after Rosset, albeit with some modification. But I do accept that I’m approaching this from a theoretical bent as opposed to the practical explanation which one gives to clients at the outset. Ward LJ has a really amusing pop at conveyancers in one of his judgments where he tells them simply and in capitals to make a declaration of trust.
One further swipe at SvD (can’t resist it). It’s not so much an inference of half half from entering into joint title as an imputation; and an imputation derived from a conveyancer’s device. This is where the “Cherry” (ie Sir Benjamin – http://www.oxforddnb.com/view/article/50535) bites back.

By: NL

NL — Sun, 01 Nov 2009 23:25:15 +0000

Dave,

I appear to have ended up as the defender of joint title and the S v D presumption. I’m not, or not particularly so. I’m just not persuaded of any better alternatives. We agree resulting trust is more likely to end in injustice, we agree that S v D enables ‘ambulatory’ or changing intentions – although I’m perhaps less sure that this is a family model rather than equity per se.

I think my position is basically forward looking. The best way out of the mess, absent full scale law reform on co-habitee’s interests, is for there to be a clear basic position on which people can be advised. I think that anybody (as cohabitees) entering into joint title should be advised on the presumption of a 50/50 split and should be advised on tenancy in common in specified shares. I think conveyancers should be doing this as a matter of course and I remain astonished that people clearly weren’t and aren’t adequately advised on joint title at the point of transfer. If they were so advised, this would mean a) that there would be an absolutely clear basis for the presumption of 50/50 and b) if there was a later argument over the specified shares in a TiC, the location of the burden of proof would be clear or, that if intentions changed there should be an awareness that this would need to be expressed.

Obviously, the presumption will result in a certain level of injustice, but – as the case above makes clear – the alternative is to leave matters prey to the whim of the court, in this case to adopt resulting trust principles. To start from a blank slate is, as noted in S v D, likely to end up involving disproportionate costs. And on ‘equality is equity’ – no doubt in particular cases, it isn’t, but on joint title, where the position in law is that both parties own 100%, and would have sole title by surviourship, it is hard to see what else could be an equitable starting point. Granted, this view would be a lot stronger if people had actually been adequately advised in the first place. But, absent full scale law reform, I just don’t see the point in declaring that joint title is meaningless and that it could mean anything from a share of 0% to 100%. Entering into joint title has surely to carry considerable sway as to inferred shared intention in and of itself.

By: dave

dave — Sun, 01 Nov 2009 21:26:36 +0000

And another thing, NL … I’m afraid that I just don’t buy into the “equity is equality” standpoint at all, either as the start or by way of presumption. There is no basis for either and it would be more likely to lead to unfairness as an outcome (which is probably from where I’m coming). Equity is equality is, in any event, only a very loose maxim and one that is easily disturbed (in the back of my mind is a vague memory of that being said in re Diplock by the MR). But, and this is the problem inherent in the new model constructive trust in theory at any rate, the common intention either as regards the formation of the interest or as regards its quantification must usually be formed at the point of purchase or exceptionally thereafter. The real innovation of SvD is not just around the presumption of equality in JT situations but also in going into the way they live their lives after the purchase but essentially unrelated to the shares in which they hold the property. It’s essentially a much more family-type jurisdiction and against the essence of equity to me at any rate.
There we go, I’ve become a property lawyer. Yuk.

By: NL

NL — Sun, 01 Nov 2009 12:14:12 +0000

Francis, it certainly does simplify matters, I only meant that I doubted that the simplification came from the conveyancers ;-)

By: Francis Davey

Francis Davey — Sat, 31 Oct 2009 20:27:41 +0000

Its correct to say that the fact that there can be *only* joint tenancy in law is to simplify the certainty of conveyancing. Where there was tenancy in common in law (rather than equity) you ended up with titles that were split between numerous people (consider what happened where property was split on death). The reform that permits only joint tenancy in law (and a maximum of 4 joint tenants at that) together with overreaching means that you can have much more simplicity and certainty in conveyancing.

By: NL

NL — Sat, 31 Oct 2009 16:03:05 +0000

Dave, I don’t think we’re really disagreeing. But given that it is both possible and simple for joint title to be held as tenants in common, in specified shares, there is a clear mechanism for setting out the parties intentions as to share. The S v D presumption doesn’t overrule a tenants in common trust deed, so what we are left with is situations where there is joint title, no TiC deed and no express statement or indication of the parties’ intentions. In those circumstances, I’m not sure why the usual equitable presumption that joint title means equal shares should be set aside for family disputes.

But of course it is hardly a perfect solution, I completely agree. In these comments, my main objection has been to the suggestion that resulting trust should be the model instead,

I’m not sure joint title came out of conveyancers looking for simplicity. The search for the simple option doesn’t strike me as a characteristic of conveyancing history ;-)

By: dave

dave — Sat, 31 Oct 2009 12:49:19 +0000

Well, NL, it’s not often that I disagree with you but I think I probably do on this. It’s all about the purpose of joint legal title to me. Why is it that you can only hold legal title of land by way of joint tenancy and not in shares? The answer seems to be that this is (or was) for conveyancing simplicity because of the rule of survivorship and alienation. The SvD problem is that it elevates this conveyancing simplicity into a presumption as regards quantification. That must be wrong. That’s not to say that I follow the RT analysis either because that leads to patently unfair outcomes unless one’s focus can be on the more nebulous items (in terms of quantification) which, to me anyway, an RT analysis cannot provide. So, CT must be the right way to go; but the presumption is wrong as the starting point.

By: NL

NL — Fri, 30 Oct 2009 19:43:44 +0000

Hendryk, I know I keep coming back to this, but, regardless of S v D, the presumption in equity is that joint title means equal shares. If your hypothetical couple held as tenants in common in specified percentages, no problem and if anyone sought to claim differently, it would be clear where the burden lay.

Personally, I think conveyancers ought to be advising on this, strongly, before registering joint title, but that is probably too much to ask of the paralegal-stuffed conveyance factories. That’s commodification for you.

The trouble with resulting trust principles as a starting point is, in part, that it simply overrides the principle of joint tenancy (and what if one dies, should the other be excluded from taking the whole by survivorship as well?). But also, given that contributions are not necessarily simply monetary, it is just as prey (if not more so) to judicial wilfulness. In addition, the burden of proof would not be on one party, but rather on both to establish the contributions on which the resulting trust would be based.

Your suggestion that ‘most people just want out what they put in’ may well be true, but what it is that they put in and want out is very, very rarely a consensus point.

By: Hendryk

Hendryk — Fri, 30 Oct 2009 17:30:52 +0000

I can’t help sympathising with David’s point of view. Whatever the rights or wrongs of the decision from the point of view of legal precedent, it seems to me that SvD develops the law to a point where injustice will inevitably arise. In my experience, co-habiting couples who part company very often simply want to take out ‘what they put in’ and they will be aghast to discover that they will now be asked (essentially) to prove a negative (that there was no common intention to share equally) before they can do so. The route to proving that negative – and then the resulting shares – seems somewhat arbitrary to say the least. And if the financial arrangements of S and D were so unusual, it seems even more likely that couples who simply throw their lot in with each other during the good times are going to be penalised for doing so (or, at least, one half of the couple will be).

By: simply wondered

simply wondered — Thu, 19 Mar 2009 09:43:31 +0000

re david’s point on exceptional circs in relation to treatment of finances: an informed source close to the case was of the opinion that there was nothing unusual whatsoever about the financial arrangements between stack and dowden.
this means that the answer to sarah’s question above is that ‘brenda went off on a bit of a denning’. there! that should get you a first and bollocks to oxbridge essays or whoever. i have of course been here before… and nl who knows more about such things than me (about most things probably) disagrees. me, i still say that given the lack of thought many couples invest in their financial position re each other, it is no reliable indicator of their intention. still, the courts don’t exist in the real world and i’m not saying that’s a bad thing. they have to draw some lines and lines will always be arbitrary.