Jones v Kernott: Ending the big debate?

One of the things I really don’t like about academics is the way they sit in their offices with their heads so full of doctrinal legal theory that they forget (if they ever knew) about the ways real people lead their lives.  What got me through land law as a student was Gray and Symes’ textbook, Real Property and Real People.  The great thing about the re-invention of the constructive trust in the 1960s was that it seemed to provide a sufficiently malleable tool to connect real property and real people.  So what if it was improper or that, properly, the approach should be the strict presumed resulting trust – that clearly didn’t respond to everyday life.  So, I’m an impure property lawyer and quite proud of it.  Any reader of the (excellent) work of the team of researchers on cohabitation lead by Gillian Douglas at Cardiff will appreciate the real problems that are just not amenable to the clean and fundamentally unfair solution provided by a resulting trust theory.

Be that as it may, it has become apparent over many years that the constructive trust doctrine is not exactly easy to operate.  Partly, this is because judicial rhetoric, when unrestrained, may be capable of many meanings; partly also, I fear, it is because sometimes (even the greatest) judges don’t understand the difference between some of the key concepts.  One such set of key concepts is the difference between an “inference” and an “imputation”.  That difference has always (until now) seemed pretty important.  It is what divided the House of Lords in Stack v Dowden [2007] UKHL 17 in part (or so it seemed) but it was never entirely clear whether the majority of the House in that case was explicitly accepting an imputation, perhaps partly (unfairly) because previous judges had occasionally elided them when they should have known better.  In Stack, Lord Neuberger provided what might be regarded as the classic definition of the difference between the concepts:

An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements. An imputed intention is one which is attributed to the parties, even though no such actual intention can be deduced from their actions and statements, and even though they had no such intention. Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend. ([126])

And so, Jones v Kernott [2011] UKHL 53.  In many ways, the facts are a perfect testbed for the application of the doctrine in Stack and the SC largely play a straight bat in doing so.An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements. An imputed intention is one which is attributed to the parties, even though no such actual intention can be deduced from their actions and statements, and even though they had no such intention. Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend.

A quick re-cap of the facts.  Ms Jones and Mr Kernott set up home together and subsequently bought the lovely sounding 39 Badger Hall Avenue in their joint names in 1985.  They had two children together.  They built an extension (well, they jointly financed it, he built it with his family and friends).  He left in 1993.  Ms Jones paid all the mortgage and other outgoings and, in truth, Mr Kernott doesn’t sound like the best sort of Dad (ie “very little contribution to their maintenance and support).  In 1995, they cashed in a life insurance policy to enable Mr Kernott to buy his own place.  14 and a half years later, Mr Kernott asks for half of the Badger Hall property.  The only surprise on these facts to be honest is that the Court of Appeal agreed with him.  They did so because it was accepted on all sides that at the time they split up (ie 1993), it was accepted that they owned it equally and there was no other common intention to justify departing from that outcome.  Now, that was just a load of old b********.  The real underlying question was one of law, ie over whether one could impute a common intention as to the quantification of the beneficial interest.

It must be emphasised (over and over again) that both Stack and Jones are cases where the parties are joint owners.  They do not deal, or properly any comments can’t be considered to be absolutely authoritative, about the situation where one partner is a sole owner.  There, it is clear that the presumption is that the sole owner also has the sole beneficial interest, a presumption which can be overcome by demonstrating a common intention that the property was to be shared, which has been acted on. That last sentence is supposed to be neutral, and obscures some pretty fundamental and difficult questions which have been the subject of exploration in property law, gender studies, law and economics, and socio-legal studies.  There are no easy answers in this branch of the law.

Back to the point: Stack clearly held that where the parties held the property jointly at law, that provides the necessary common intention as to beneficial interests.  The next question is about quantification and, here, Stack said that the usual result would be that the beneficial interests follow the legal title (ie half, half).  Only in rare cases, according to Baroness Hale in Stack, would it be possible to override that position.  [Pause to observe the empirical assumption inherent in that comment, cf Pinnock).  How do you displace that position?  Baroness Hale in Stack said that one had to look to the common intention of the parties in light of their whole course of conduct but she warned strongly against that course of action, a warning which she (together with Lord Walker, in a joint judgment) repeats and emphasises at [19]-[22] – one is dealing with joint enterprises and it is practically difficult to unravel everything.

So, what does the SC do in Jones? Well, the first thing they do is repeat what they said in Stack, make crystal clear (if it wasn’t already, which it was, but those Oxford types keep on sticky beaking) that the doctrine of resulting trusts has absolutely no bearing on domestic cases  (at [25])(except where they are business partners: [31]), and then they have to deal with the imputation/inference problem.  Baroness Hale/Lord Walker are quite amusing about the foundational case, Gissing v Gissing [1971] AC 886 noting that “their Lordships speeches were singularly unresponsive to each other” (at [28]), but then the hard work begins.  They argue that we do actually quite often impute intention, without necessarily calling it such:

Whenever a judge concludes that an individual “intended, or must be taken to have intended,” or “knew, or must be taken to have known,” there is an elision between what the judge can find as a fact (usually by inference) on consideration of the admissible evidence, and what the law may supply (to fill the evidential gap) by way of a presumption. The presumption of a resulting trust is a clear example of a rule by which the law does impute an intention, the rule being based on a very broad generalisation about human motivation … ([29])

They accept that the starting point is to find the parties’ actual shared intentions (ie expressed or inferred).  However, “… where it is clear that the beneficial interests are to be shared, but it is impossible to divine a common intention as to the proportions in which they are to be shared … the court is driven to impute an intention to the parties which they may never have had” ([31]).  They argue that the difference between an inference and imputation may not be so great in practice (see also Lord Collins at [58] and [65], where he notes “one person’s inference will be another person’s imputation”) - given the difference between the members of the SC on the facts of Jones, this seems an amazing observation, but they note that the scope for inference is wide ([34]).  One final word on this is given at [47] where they note that

In a case such as this, where the parties already share the beneficial interest, and the question is what their interests are and whether their interests have changed, the court will try to deduce what their actual intentions were at the relevant time. It cannot impose a solution upon them which is contrary to what the evidence shows that they actually intended. But if it cannot deduce exactly what shares were intended, it may have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time. This is a fallback position which some courts may not welcome, but the court has a duty to come to a conclusion on the dispute put before it.

Then they turn to the facts and note that the trial judge had found that there was a common intention that the beneficial interests would change (Lord Wilson in Jones notes at [84]: “… the case does not require us to consider whether modern equity allows the intention required by the first question [ie whether the beneficial interests would change] also to be imputed if it is not otherwise identifiable.  That question will merit careful thought” – so off to the supreme court again in such a case, perhaps a leapfrog?).  They hit on the sale of the life insurance policy to demonstrate that one could infer a new common intention that Ms Jones was to have sole benefit of the capital gain in Badger Hall Avenue and Mr Kernott in his new property [48] – ingenious but not a finding made by any court below but, again ingeniously, “it is clearly the intention which reasonable people would have had had they thought about it at the time”.  There is an interesting point made about occupation rent as a footnote, had they been required to go into a full accounting process: as Mr Kernott had basically done nothing for the kids at all and hadn’t contributed to the outgoings, no occupation rent would probably have been payable (which seems like quite an important point on the s 13 TLATA claim – see [50]).

They conclude with a pithy summary at [52], which is repeated here for good measure:

(1) The starting point is that equity follows the law and they are joint tenants both in law and in equity.
(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.
(3) Their common intention is to be deduced objectively from their conduct: “the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party” (Lord Diplock in Gissing v Gissing [1971] AC 886, 906). Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden, at para 69.
(4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, “the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property”: Chadwick LJ in Oxley v Hiscock[2005] FAm 211, para 69. In our judgment, “the whole course of dealing … in relation to the property” should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties’ actual intentions.
(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)).

So far so good.  But Lord Kerr and Lord Wilson are, in different ways, refuseniks against the “it makes no difference” line; in fact, both of them would have eschewed the inference adopted by Hale/Walker and would have gone for the fairness line.  Lord Kerr does the job of noting where the agreement and disagreement lies, identifying two issues: how far should the court go to infer actual intention as to shares? and is the inference/imputation problem likely to be practically significant?  On the first question, Lord Kerr said that the court should not overly strain to infer a common intention so as to avoid imputing one.  He does not like the idea of imputing intention, and would have preferred a fairness jurisdiction “… without elliptical references to what their intention might have – or should have – been. But imputing intention has entered the lexicon of this area of law and it is probably impossible to discard it now”([74]).  There does need to be a clear dividing line between inference and imputation, the latter involving a rather different exercise ([75]).  On the facts, Lord Kerr would not have found the inference from the “slender foundation” accepted by Hale/Walker but would have easily imputed the same outcome.

Similarly, Lord Wilson would have imputed the same outcome, but he rather takes apart the crucial paragraph from  Baroness Hale’s judgment in Stack ([61]), which he neatly divides into four sentences (at [85]), and demonstrates how her third sentence (about doing away with fairness) was manifestly incorrect.  As he puts it: “Where equity is driven to impute the common intention, how can it do so other than by search for the result which the court itself considers fair?”  He regards the observation that the difference between inference/imputation has limited practical utility goes too far.

Comment

My hope is that this line of cases will somehow re-connect the law with everyday life to the extent that is possible.  It will undoubtedly lead to more litigation (inference or fairness?), and the following questions are absolutely up for grabs:

(1) In a sole ownership case, can one only infer a common intention that the beneficial interest is to be shared from direct contributions? If so, what does that mean? If not, what do we mean by indirect contributions?  This is sometimes referred to as the Burns v Burns question after that famous case to which there is much harping back – for what it’s worth, my take on that case is that the difference would have been neither here nor there because Mr Burns was rich enough not to need any direct/indirect contributions to the purchase price of the property, so on either view Mrs Burns was stuffed by the law – and the case just demonstrates the inner workings of the law of trusts (making the rich richer broadly).

(2) In joint ownership cases, just how rare are those rare cases where the court will re-open the joint ownership issue?  this seems an important, as yet unanswered question, although it is perhaps significant that in both Stack and Jones the highest court has re-opened it.  In retrospect, it may have been wrong to regard such cases as empirically rare.

(3) In a sole ownership cases, can one impute a common intention that the non-owning party will have an interest in the property?  In joint ownership cases, can one impute a common intention that the parties are to share unequally?

Those are the questions which seem to me to remain; there will be others.  But, I suppose the point of that is to note that it is absolutely pathetic that after 40 odd years of this stuff, these issues aren’t resolved, the principles aren’t clear, governments weakly decide to ignore the issues (because they don’t want the “government supports cohabitants over marriage” type headline).  All the while, this charade carries on.  It doesn’t do us any favours.

[Ed: On BBC R4 today programme this morning (10.11.2011), I heard the correspondent say that the outcome prescribed by the SC in this case was based on fairness.  That was the way Lords Kerr and Wilson preferred to decide the matter, but the majority clearly did so on the basis of a (wide) inference of fact as to the intentions of the parties.  Please, please, please, don't repeat the reporter's error]

 

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Posted in FLW case note, Housing law - All, Trusts and Estoppel and tagged .

87 Comments

  1. Stack said that the usual result would be that the beneficial interests follow the legal title (ie half, half).

    Bzzt. As Lady Hale explicitly says in Stack (para 56, and Hoffman at 4), the result is a presumption of joint beneficial tenancy. Not the same thing until there’s a severance, and although there usually will be a severance in due course (as there was in Kernott) in the straightforward cohabitee cases, there are going to be contexts (eg in particular when one party has died) where that is going to matter.

    (Which is why I find it a bit odd that having observed in Stack that Goodman v Gallant establishes that severance of a joint beneficial interest leads to a tenancy in common in equal shares, Hale didn’t actually go back to that question in Kernott.)

    • PS they could have dealt with it of course, Goodman v Gallant leaves a small window for the parties to agree that if there is a severance they will hold otherwise than in equal shares: “It would no doubt be possible for a trust in terms to provide that the beneficial interests of two parties should be equivalent to those of joint tenants unless and until severance occurred, but that in the event of severance their interests should be otherwise than in equal shares. In our judgment, however, such an arrangement cannot be spelt out of the relevant wording of the conveyance in the present case,which must be construed according to the traditional – sense of a beneficial joint tenancy, with all its incidents, including those relating to the effect of severance.”
      Presumably that is where we are to impute or infer intentions on the part of Ms Jones and Mr Kernott (and is the effective severance his express one or an earlier one by conduct, that doesn’t seem clear but maybe doesn’t matter there). But it would have helped if they had said so, since there was an express concession on Miss Jones’ part that they started off with a beneficial joint tenancy (para 43), whereas in Stack the finding was that they never intended a beneficial joint tenancy.

      (Query what can happen on the statutory severance on bankruptcy as well. There the couple will usually argue on the TiB’s order for sale appln that the bankrupt had for some reason or other no beneficial interest in the property at all, albeit usually without success)

  2. On your live issues list…
    (1) I think paragraph 52 of the judgment makes it pretty clear that once the cohabitee who is not the legal owner estalishes that there was a common intention he should own some of the beneficial interest then the court must decide what the common intention was about hte amount of that interest and in the absence of any acutal or inferred evidence of the terms then the court can impose what it considers is a fair share split between the legal owner and the non legal owner cohabitees. When deciding that the inferred agreement or a fair share is, then, as with joint owner disputes, the court will want to consider financial contributions but will also want to consider all other relevant facts and factors.
    (2) It is interesting to note tha the “very unusual” formulation for a departure from the presumption of equity following the law in Stack does not appear to have been (as best I can tell) repeated in Jones. It may, therefore, not now be so difficult to displace this presumption.
    (3) In single ownership it will be possible to impute common intention of joint beneficial ownership – again see para 52. In joint ownership it will be possible to impute unequal shares – this is precisely what Lord Kerr and Lord Wilson did in Jones (though Lord Kerr, very sensibly in my view, expressed his dislike of the imputation terminology)

    • @JAC
      I’m not sure that I can quite let you get away with your response to my point (1). The question I was raising was whether direct/indirect contributions can establish the inference of a common intention that the non-owner was going to get a share. You are correct as to the quantification of that share which is, of course, an entirely separate issue.
      On (2), yes, I noted that slippage but forgot to put that in and when I thought about editing it subsequently thought that,actually, they were making the same point in asserting the difficulties in disturbing the assumption of equality in joint cases.
      On (3), I disagree with your reading of [52] again, which is essentially as to quantification and not as to whether one can impute a common intention to establish the interest in the first place.
      But, thanks – it’s made me think more!

  3. This case is not going to affect many cohabitees because this was an “old case” where there was no express declaration of trust. These days, because of the wording of the TR1, there is nearly always an express declaration of trust, either “beneficial joint tenants” or “tenants in common”. It will not make any difference if the parties’ “common intention has changed. You can only vary the terms of an express declaration of trust in accordance with the terms of the Trustee Act 1925. Effectively,this means any variation has to be in writing and signed by both trustees. As they are unlikely to agree on a change as in Jones v Kernott, both parties will be stuck with a 50/50 split if they were beneficial joint tenants or whatever shares were originally agreed if they were tenants in common.

    • Thanks for the comment, John. To the extent that TR1 is designed to resolve these matters, I agree. However, one of the reasons why I referred to the Douglas work was (in my head) because of the comments there made about the use of TR1. As I understand it, TR1 is not compulsory and its use is not entirely consistent in practice. The worst thing is that the Land Reg have explicitly decided (I think) not to make its use compulsory, which may produce more disputes. But I would be interested in your views on all that

    • If they declare a beneficial joint tenancy it can be severed, thus creating a tenancy in common, without any need for writing. See LoPA 1925 s.36(2) preserving the methods “in which a joint tenancy of personal estate could have been severed prior to 1926″. Severance is not a disposition within s.53 and writing is not essential.

      As for once you’ve got a beneficial tenancy in common then any further variation of shares in the Jones v Kernott context is a question of “the operation of constructive… trusts” and to my mind it falls within s.53(2): writing not required.

      • Absolutely, Richard, and to go back to your earlier comment, it is always open to parties to sever the beneficial JT (by notice in writing or one of the common law methods) and ascribe a particular share to each of the parties formally. If they don’t do so, agreed that you’re in CT territory with the observation that it will be really difficult to re-open (for the reasons given by Hale/Walker). Or have I misunderstood your comment?

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  6. Dave

    Regarding your point (1) I think I probably misunderstood the nature of the query you were raising. As best I can interpret matters as they now stand, the formal position in the sole ownership scenario is that providing the non-legal owner can establish the common intention first of all to get past the equity following the law starting point, there is no absolute requirement that there be direct or indirect financial contributions.
    Having said that I suspect it would only be in pretty unusual sole ownership circumstances that the court would infer an agreement as to the common intention for joint beneficial interest if there were no direct financial contributions.
    It could be, though, that future litigants will argue that if Lord Walker and Lady Hale could infer a common intention that shares should be changed only on the basis of the very slender evidence of (i) what Kernott decided to do with his half of the insurance monies and (ii) a lack of interest in paying bills in the property where he was not living, then it is equally possible to infer an agreement that the non-legal owner should have some beneficial interest as he/she was painting the spare room, paying for the shared use of the Sky+ (etc, etc). It might even be argued that now the court has a greater discretion to order something other than 50/50 and find a “fair” solution then the court ought to be less worried about departing from equity following the law. I would hope that such a case would be rejected (a bit like Lissimore v Downing) and there would be some solid caselaw giving an indication as to the boundaries of the inference/imputation/fairness argument.

    • Thanks, JAC, and apologies for the misunderstanding which was most likely due to my writing that late at night. We agree on sole ownership cases, but there are interesting diverse approaches in the cases as to quantification, in part (I suspect) because that issue has always been regarded as something of an add-on. Why, for example, did Ms Eves get the share she did? In Grant v Edwards, they did divide 50:50, as I remember it, on the slender evidence that they shared the fruits of an insurance claim, which was relatively small, in that way. The retreat to a relatively principled jurisdiction is clearly important, one does not need to scratch too deeply at the surface to recognise that considerable uncertainty remains. As various empirical studies have found, for example, cohabitants arrange their finances in plural ways. In their discussion of the empirical evidence in relation to the assumptions underlying Stack (“highly unusual” facts), Douglas et al (in a brilliant article in the Modern Law Review, 2009, at pp 37-8) point out:
      ‘… there is little clear correlation between other features of relationships and the way the couple organised their finances. … [their] study also found cohabitants to be more likely than not to keep their finances separate, with two-thirds of [their] sample only operating sole bank accounts. Even among couples who owned their home in joint names, fewer than half operated joint bank accounts. … This all suggests that keeping money separate – or pooling it – does not necessarily provide reliable evidence of the parties’ intentions, and it may not be at all easy for practitioners to identify cases which have sufficiently “unusual financial arrangements to justify attempting to displace the heavy presumption emphasised in Stack v Dowden that equity follows the law in determining beneficial interests.’
      As Baroness Hale might say, “quite so”.

      • just wanted to ask that what is the diefference between constructive and resulting trusts, ie. what are they, and their importance and application in Jones v Kernott [2011]

          • I’d also suggest, in a nice way, reading Stack v Dowden in full, rather than the headnote in some rubbish law report (no offence meant). As you’ll see from the above, Jones isn’t really about RT at all, other than to dismiss it.

            • i agree dave!!!! Can you give me your email address, as i intend to ask you some questions?

            • Just want to say that ‘Blackburn Uni’s comment was quite appropriate however, you will not get an answer here as it seems similar to a exam question. I, myself being a lecturer at Manchester MET, would believe that that question posted is an assignment question.
              And John, no one passes out emails here. if u have a question, post it here.
              Thanks
              FB

            • Frank – not sure what you mean by ‘appropriate’, as it wasn’t a comment, just a question – and all too obviously an essay question (although perhaps not a properly understood one) as you note. The limits of its appropriateness was that it was at least on a post dealing with constructive trust.

              We get a number of constructive/resulting trust questions from people looking for their essay answers each year. They get short shrift, I’m afraid.

            • Oh and ‘if you have a question post it here’? Within limits. If you have a comment, a view or a question on differing interpretations, or implementations, fine.

              Any ‘student looking for coursework answers’ type questions should not be posted here. Call me uptight, but we’ve got quite enough to be getting on with without running an undergraduate revision session.

              I’m allowed to say this because I run this site…

            • @ John Bishop – absolutely no e-mail addresses. This is anonymous, y’know!

              @Frank Barlin – if only my students could get to grips with that, I’d ask the question. Your students are obviously a lot better than ours. Lol

  7. Yes NL you do seen to be quite ‘uptight’. John, i feel for u brother. I hate equity and my lecturer was absolutly useless however, i cant hel u on this area.
    And frank, as for you, i hate law lecturers

    • Thanks Bon for demonstrating exactly why we take the position we do. I just love the idea that we are uptight because we refuse to answer your essay questions for you all.

      • To be honest, im quite fine with the position upheld by you however, pointing a student to the right path would also be an approach that one would deem, in Franks wording, ‘apperopriate’.
        I myself in my university years found it difficult in coping with equity/property hence, i would do the same as ‘blackburn uni’ in searching for help. however, i am not that experienced in equity and property law/accustumed to jones v kernott hence, i am afraid to dissapoint you ‘blackburn uni’.
        Anyways, Good Luck Blackburn Uni

        • Bon

          One would assume that a student has course notes, lecture notes, reference texts etc. to consider.

          And quite how one points to ‘the right path’ on a question like ‘what is the difference between resulting and constructive trusts?’ without an extended amount of work is beyond me.

          We are not here to help students. Not our purpose and not our job, If students find something useful here, fabulous. If not, then I’m not sure where they get the idea that we are the right people to ask. Of course, if they want to raise an interesting issue, then they are very welcome indeed.

  8. Well, to whom it may be concerned, i believe that this ‘forum’ is for people to talk about Jones v Kernott and the controversial decision reached in it. if ‘Blackburn Uni’has a certain question to ask regarding this case, i believe this is an appropriate place to post the enquiry. in no prospect am i saying that the comment posted by blackburn uni is appropriate however, if BU wishes to post a narrower question regarding the case and its controversial outcome, i belive that would be a question worth answering.
    BA

    • Bon

      You appear to have mistaken this site for a forum. It isn’t.

      Do have a look around and you’ll see. This is a specialist housing law blog written by practising solicitors and barristers and I edit it.

      If someone has a comment about the case, sure, that is welcome. But as you’ll note from our comment policy, we don’t provide legal advice. The same goes for answering basic questions.
      So, debating the approach of the court, the rationale, arguments or effects of the judgment – yes. Explaining the difference between resulting and constructive trust – no.

      • NL meant to add, of course, that we’ll gladly explain the difference between resulting and constuctive trusts if people want to instruct us properly and pay our hourly rates.

  9. Pay you guys?? As if!! My equity teacher is probably the best u can get!! Ul need to come to him for tuitions

    • With respect, Blackburn Uni, if he was that good, you wouldn’t be coming to us looking for answers to really pretty simple questions.

    • Blackburn, you really need to brush up your skills in putting together an argument consistent with the evidence. A rather important skill for a lawyer.

      You asked us your bloody stupid question in the first place. So either your equity teacher is lacking in application and ability, or, and this seems rather more likely on the available evidence, you are.

  10. To be fair, my equity teachers doin his job cos if he answered te question i posted earlier, it would mean that he wouldve answered my assigment question hence, hes a very intellectual person, eveb though he may not act it.

    • Blackburn, another lawyer’s skill you may want to practice is knowing when it is best not to say anything more.

      You have just confessed that you were looking for us to answer your assignment question for you. Well done. You are coming out of this impressively.

      • Thanks for posting that John. It is a subject close to my own heart, as I don’t do marriage (after the 1st time, when I was very young). It did clear the matter up of the law on this.

        It’s like tax lawyers, they charge a lot so you can avoid tax. I heard years ago that access to the internet improves your take home and quality of life potential. Such posts certainly do, thanks.

  11. I was just wondering any suggestions why the view of
    holding the house on a trust for the appellant/respondents children was not adopted by the courts?

  12. I have been reading what is a very helpful article that i feel is helping me no end in my assignment. Yes I am too a student who is studying equity and trusts in my final year. I am presuming the people responding to Blackburn Uni’s enquiry are those of professional standards and with so should start acting in a manner which conveys such an impression. This boring tit for tat is not conducive to any discussion related to the article and rather than leaving it at: This site is not willing to answer essay questions it goes on and on repeatedly like you have nothing better to do.
    Every legal professional has been an undergrad at some point and you would do well not to forget. What may be such an easy concept for some may not be for others and it does not make them inadequate prospective lawyers but those who may have to work a bit harder.
    Well done b/burn uni for trying i applaud your cheeky efforts to grasp an answer from those who appear to have known all things equity and trusts from birth. Not quite a stupid question if you ask me a mere undergraduate xxx

    • Sigh. Do make your mind up. Should students work a bit harder or try to blag their answers from others? Can’t have it both ways.

      When did the principle that one should do one’s own work on a degree become extinct? The idea of coursework is so that students actually think about the issues. Students should start acting in a manner which conveys such an impression.

      By the way, the only reason the exchanges on this issue have go on for so long is it amuses me. When it stops amusing me, it will end.

      • My half-pennyworth is this. There’s no short answer to what resulting and constructive trusts are. Or rather there are short answers, but if they were right they would contradict a very considerable number of dicta over the years. The annoying fact is that the case law is problematic.

        The only really sure way to deal with problematic case law – and the method that we all use in practice – is to engage with it which means to read a lot of it and work it through. Ultimately there’s no substitute for reading it. Any summary won’t really do it justice.

        However there are really good analyses (eg Tony Oakley’s work on constructive trusts) which are a shorter read than “case law passim”.

        So this explains, I hope, why we don’t answer a question like the one posed: First because the process of understanding it is part of what you are supposed to be learning, giving you the answer won’t help and Second because its a really big job that others have done and for which we aren’t being paid. We have only so much spare time.

        • As an undergraduate, I understand that sometimes you need to be pointed in the right direction. I would hope that the person asking what a CT/RT is was looking for a tip and not a completed essay. I like the above comment as it has explained why a longer answer isn’t provided, but also gives bit of general advice for where one should start reading. Thumbs up to Francis

      • You know what they say about the easily amused.
        Students as I am presuming you will know have acted in this manner for a very long time their is nothing modern about people trying to get answers in some shape or form from another. I have like i have said struggled with the concepts myself and have conquered this by hard work which is what BU is going to have to do. But you cannot blame a person for trying the easy way(which in no way I promote)so yes i can have it both ways I think you will find. I think you should just give it up as a bad job because your not coming out of this very well it amusing you doesnt say much apart from you need to find something better to do with your time than getting mad at students trying to pull a fast one.

        Thank you very much Dave for such an accessible and well written piece that has helped me with some key points it is just a great shame that a its all a big amusement page for some xxx

          • Well do you not think benny is trying the easy way “Hows the assignment going?” your explaining concepts to the guy that you can read in any equity textbook out their so i think you need to make your mind up on policy and stick to it.

            • Because I hadn’t twigged Benny until after responding to his second question. And because his questions could be answered in one line which may or may not be helpful. Pace Dave’s and my responses. And because he wasn’t asking for his whole bloody essay to be written for him.

              I love the way all the various student responses here, including Blackburn’s, are not only defending blagging but being utterly sanctimonious about someone calling them on it. That is not, I can assure you, ‘what students always did’. Way back in the mists of time, they might even have had the grace to be a little bit embarrassed. Clearly those days are gone.

              Now I must get back to being nasty to people for a living, excuse me.

            • Your excused enough said you lost credibility ages ago from not practicing what you very much preach. Have a wonderful day ;)

            • Dear Another.

              I am genuinely bewildered. What is your actual point? Do you have one? I have been poking you with a stick to try to find out what it is you are actually trying to say. You say you try hard and do your own work – great, I commend you for it – but you appear to take huge exception to me being gently rude to a lazy git ‘trying it on’ – in your words – (and a thoroughly unrepentant lazy git at that). Why?

              So, I’ve been poking away, hoping to get something approaching an argument out of you, but no, just passive-aggressive sulking in response.

              You found Dave’s post helpful. That is great. We are pleased if people find our material helpful or of use, be they students, practitioners, whoever. But you appear to think – as far as I can tell – that we owe students more, to the point of being polite and helpful with people ‘trying it on’. Does this not strike you as a rather odd demand?

              We are busy people who spend a lot of time that we don’t have doing this site for free. There is, as with Dave’s piece, some excellent quality work on analysis and commentary available here completely gratis. Yet somehow, the demands of students to have their questions answered and essays written for them are so important that we must make more time to deal with them?

              I have been doing nothing but respond to your and the other’s comments, but nobody has been able to explain why it is incumbent upon us to be polite and helpful to the lazy. (If you actually believe professionalism in the law means being kind to pipsqueaks who can’t be bothered to make an effort, you have a very rude awakening ahead of you, by the way). ‘We were all students once’ doesn’t cut it when you are talking to people who actually did their own work back when they were students and know why one is supposed to. I rather suspect you don’t actually have an argument, rather a sense of affronted entitlement.

              But it is clear I will have to remain bewildered. I’m just getting spluttering and whinging in response. As that is neither entertaining or interesting, this topic ends here. Any more comments not on Kernott v Jones will be deleted. Plus I am starting to feel like I am kicking kittens

  13. why do courts feel the need to look at fairness rather than what was actually the parties common intention.. I’m at a loss

    • When the common intention wasn’t clearly expressed, or simply inferred from the parties’ conduct…

      ‘Fairness’ doesn’t take the place of a clear common intention.

      How is the essay going?

  14. Pingback: Kernott v Jones on BBC Breakfast - Marilyn Stowe Blog

  15. Re: the presumption of equal shares being rebutted if it can be shown that the parties had a different common intention at the time of purchase (or if their intention subsequently changed).

    If you’ve established a change of intention, but you can’t identify the shares the parties intended, it is clear that you can impute an intention and impose a fair division. But can the court IMPUTE a change of intention out of fairness, such that it rebutts the presumption of equal beneficial ownership? Or is it only possible to INFER a change of intention based upon the evidence (balance of probs)?

    In Kernott, the trial judge found that the common intention required at the ‘presumption’ stage could be inferred…but could it be imputed too?

    ‘That question will merit careful thought’ said Lord Wilson. Hmm.

    I’m thinking, carefully.

    PS For the record, I am also a student, currently battling with a piece of coursework on this very subject. Can we please get back to some intelligent discussion of the case(s)? The earlier posts above are really helpful, interesting and are deepening my understanding of what seems to be a complex area of law. Blackburn Uni et al – you are a disgrace. I feel embarrassed to share the label ‘student’ with the likes of you. Read the relevant chapters. Go and get the authorities. Read them. (Yes, it’s really hard and takes ages. Sometimes you have to read the same page ten times before it sinks in.) ‘Affronted entitlement’ indeed. (Undoubtedly you’ll have to Google the definition.)

    • Babystrangeways

      I think the reason you haven’t had a response before now is that yours is a very good question that doesn’t have an answer (yet). It will no doubt come up in future cases. It is difficult, as without at least the fig leaf of inferred changed intention, the Court is quite simply imposing its view of a fair division where there is no evidence (even by inference) that the parties intended to vary any presumption of equal shares (or whatever a previous express share was). It may be a step too far.

  16. The penultimate comment was indeed the most interesting one and perhaps articulately in a slightly more meticulous manner can be expressed as follows:

    Presuming that we satisfy (1) The Inference of an intention rebutting equity following the law we then move to (2)inferring what share is necessary.

    If however, we are allowed to engage in a fairness/imputation exercise at which point do we introduce this, 1. or 2. ?

    Do we have to say
    (1) There exists the inference of an intention but we need to IMPUTE/FAIRLY decide the share

    can we say
    (2) There exists no inference of a changed intention, so we must IMPUTE/FAIRLY decide that there is a changed intention, and ALSO IMPUTE/FAIRLY decide the share

    (2) Would certainly be a more ambitious move, as it allows the evidence of common intent to rest on more dubious and uncertain ground, as Babystrangeways states, it would be IMPUTING a common intention. I wonder what practitioners think of this and where the law stands ( I am also a law student )

    2. A second issue which hasn’t been raised and perhaps might be able to rear its head every so often is where Estoppel might have a role in this. Oxley V Hiscock and other extra-judicial commentary emphasize the applicability of Estoppel in Constructive Trust scenarios , how do people think an estoppel would apply to the facts of this case? I know Estoppel was given a cursory treatment in Stack but dont people think it should be awarded slightly more attention?

    As we know Estoppel is Unilateral, so we wouldnt look necessarily to common intent, but rather the manner in which the individual who purportedly ceded his beneficial interest behaved/obliquely assured X that X could accrue those rights.
    Would the “assurance” required by estoppel and the “evidence of common intent” required by ConTrusts be equivalent?

    I also wonder whether the quanitification exercise would be equivalent, Estoppel seeks to satisfy the “minimum equity” to do justice, is this the same as “fairness/imputation” exercise in Con Trusts or do you think it would result in a lesser share being awarded as a “minimum satisfaction”

    Personally speaking, I like the flexibility of estoppel, the way in which the equity can be satisfied at the courts discretion makes it a flexible and practical remedy, and because it relies on assurance+detrument+unconsionability+minum equity it doesnt need to engage in the artifical “imputation” exercise that ConTrusts do.

    What do people think?

    • Lord Snooty

      My response to babystrangeways on imputing intention is also my response to you, as I don’t think you have added anything to her discussion.

      Estoppel wasn’t argued in this case, so your second question is by the by. There are previous posts on this site on the constructive trust/estoppel relation and awards and I suggest that you read those, as I don’t propose to rehearse those again.

  17. Lord Snooty’s analysis of the convoluted SC judgment in J v K is lucid and vastly superior to all the preceding comments save Babystrangeways. God help Law Students studying at Blackburn Uni…

  18. @Will “God help Law Students studying at Blackburn Uni…” – what an utterly pathetic comment.

    @NL – your attitude is appalling! Would it be so difficult to show a bit of respect to students asking questions, even if only to say politely that you are unwilling to answer?

    • Ben (and also Jack, Joe, Tom, Harry and any other members of McFly who have yet to post the same comment) – we have tried, for years, telling people politely that we’re not writing their undergraduate essays for them. That doesn’t seem to work, so sometimes we get a bit snippy. Don’t worry, it’s character building.

    • Ben, so far no-one has been able to explain to me why should I show respect to students whose admitted purpose was to get us to write their essays for them. Apparently you are also of the school of thought that the lazy gits deserve respect, fluffiness and cuddles.

      And my attitude is appalling? Oh dear, oh dearie me. I am devastated. I may have to go away on retreat for a sustained course of mediation, self-criticism and introspection, until I can bring myself to politely say I won’t answer students questions.

      Hang on, I did politely say I won’t answer students’ questions. And then the polite and respectful little blighters tried, albeit incompetently, to give me grief for it. As indeed, albeit incompetently, do you.

      Sorry, was that a bit snippy?

  19. Going back to the top of the comments page regarding the part in Goodman v Gallant on agreeing in advance to vary the interests in a joint tenancy – is this still good law? At para.62 of Stack v Dowden, Lady Hale said cohabitants:

    ‘cannot at one and the same time intend, for example, a joint tenancy with survivorship should one of them die while they are still together, a tenancy in common in equal shares should they separate on amicable terms after the children have grown up, and a tenancy in common in unequal shares should they separate on acrimonious terms while the children are still with them’

    I take this to be a rejection of Sir Christopher Slade’s view that parties can vary the effect of a joint tenancy on severance, although, to be honest, I can’t see why.

  20. Do you think that he case may have application on brothers who were joint tenants for 40+ years where there is no written evidence of a severance> the two brothers were unmarried but lived together, Morcombe and Wise type scenario. They had two sisters but there was no written severance. The first died in 2009 and second in 2010. It would be useful to show that they had impliedly severed the joint tenancy or could be imputed to have done so.

    • I’d be very surprised if you could get imputation to stretch to that. Surely require evidence of express or inferrable intention – and that is going to be extremely difficult practically in your scenario.

  21. In addition, the requirement for severance of a joint tenancy other than by notice, are governed by a whole body of case law dating back to the categories set out in Williams v Hensman – I think, in practice a Court is likely to start there rather than by applying imputation.

    • I think that is right. And when the ‘share’ has already wholly passed by surviorship…

      I stick by what I said above – imputing intention to change shares is probably a step too far for the courts, at least at present, as it would remove the last figleaf of following the parties’ intentions rather than imposing Court’s view of fairness. If there isn’t even sufficient conduct to infer the intention, then there is no basis to depart from the usual position.

  22. On the point of severance based on conduct there is the case of Davis v. Smith [2011] EWCA Civ 1603 where, pursuant to Williams v Hensman, the Court of Appeal held that it is possible to infer a severance from conduct – in this case the parties were in the process of dividing their assets to reach a divorce settlement but (due to the unforeseen death of one party) never got round to serving the notice. The totally of evidence allowed the court to construe that the parties had severed their joint tenancy by conduct.

      • yes essay question can u help? what can we say about about the decision. was the case of Jones v Kernott decided correctly?

        • Shree,

          We don’t do essay questions. Sorry. You’ll need to read the case yourself and come to your own views.

            • That distant sound you can hear is me, banging my head against a wall.

              But, because we are always helpful, here is an opinion – No, it isn’t. Here is another – Yes it is. Hope that was of use.

  23. in my opinion, it’s a copout. sorry it won’t help much with the essay, tho. if you’ve time, read stack, then kernott, then read them both again and work out why the logic between the two isn’t consistent. where did the concept of fairness come in? where do practitioners attempting to advise clients find themselves after this decision? a fascinating snapshot imho of how law develops.
    and don’t worry if you aren’t sure about any of it. many people in practice can’t agree what it says.

  24. The concept of fairness surrounds the quantification aspect and that can be traced back to Oxley v Hiscock “whole course of dealings”…I think.
    Broadly speaking J v K was correctly decided and was a ‘fair’ result. Common intention can now change – that reflects the nature of cohabitees’ relationships (indeed any relationships) in a more realistic way.
    Although some people don’t agree with Baroness Hale re: Stack being an ‘unusual’ case, I think it was. They kept their finances stricly separate and there was also evidence that he received mail at a different address. Perhaps in view of these different facts, particularly the rigidly separate finances, the logic does not appear to be so skewed? In most, if not all of the previous (cohabitation) authorities, the couples ‘pooled’ their resources.
    Must admit I’ve only read these authorities from an Equity & Trusts, as opposed to land law perspective, but either way J v K is a cautionary tale for couples who fail to make an express trust/complete a TR1.

    • thanks Babystrangeways.. It would be nice if you could add more points to my question.
      Thanks a lot..

      • Shree,

        As editor of the site, can I be absolutely clear – this is not a place for you to try to get other people to write your essay for you. That should be very evdient from all the comments above. Any more attempts and you’ll be banned. Good luck.

  25. This Article started out really well!! But 65% of it is just bullshit bitchyness. It actually puts me off being a lawyer. Ive been a hard worker since 14 I am now 19 and I am two years through a law degree and have a scholarship. And I went to state school. This means nothing to you however if you refer to the top it explains how the whole cohabiting couples mess has come about as judges do not have any experience ofcreal life!! Private school, being rich and knowing the right people is all you need to get a job as a lawyer. Then look how you act pathetically arguing with students and ruining a perfectly good website. I think you need to stop thinking your better than everyone else just because your a lawyer. You might have that job but it doesn’t mean any one of us couldn’t do it better than u

    • Oh dear, Lewis.

      If it is any help, I also went to state school, am very far from rich and don’t know any of ‘the right people’.

      And, as I would hope would be clear, I am sure that there are many students who will make excellent lawyers. Just probably not the ones who want us to write their essays for them.

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