A Less Beneficial Interest

Thompson v Hurst [2012] EWCA Civ 1752

This is a rather fact specific case which shows application of the principles of Stack v Dowden and Kernott v Jones. Our report on Kernott which covers the whole debate is here.


H was the tenant of a local authority and had been since 1983. In 1985 T moved in with her. They did not marry but lived as a couple in the property. However, H remained the sole tenant of the property. In 2001 they bought the property under the right to buy scheme at a discount. The mortgage was in the name of H and she contributed the … Read the full post

Intention, intention, intention

Wright v Wright [2010] EWHC 1808 (Ch) is a near perfect example of a fundamental principle of property law, which we tutors seek to ingrain into our students (mostly, it must be said, with limited success, having looked at hundreds of exam scripts), that intention is what determines the type of interest created or transferred (trust, gift, loan, bailment etc).

The circumstances were also rather unfortunate.  Anthony (Tony) Wright had built up a successful battery business, and sold it to another company for £2.3 million; he joined the new company but, in breach of covenant, allegedly set up a competing battery business.  The new company claimed damages against him of … Read the full post

Less than ambulatory intentions

Kernott v Jones [2010] EWCA Civ 578

This was the Court of Appeal hearing, on a second appeal, of a case on equitable interests in a property. We reported the first appeal to the High Court and were uneasy about the outcome of that appeal, which seemed to turn more on an idea of fairness than on any of the scant facts in imputing intention as to the distribution of equitable shares. The Court of Appeal judgment, while perhaps harsher on one of the parties, goes some way towards re-establishing certainty for those who, foolishly but inevitably, purchase property jointly while remaining unmarried.

The facts are set out in the … Read the full post

Imputed fairness?

Jones v Kernott [2009] EWHC 1713 (Ch) [not on Bailii yet] was an appeal from the County Court on a Trust of Land and Appointment of Trustees Act 1996 case. At issue is the question of fairness and whether and how far a change in common intention can be inferred or imputed.

Ms Jones and Mr Kernott had bought the property involved in joint names in 1984. Both lived there until 1993 when their relationship ended. They were not married. Mr K moved out and in 1996 bought another property in his sole name. Ms J remained in the first property.

Mr K ceased to pay mortgage and other outgoings … Read the full post

Constructive trust and misrepresentation

Qayyum v Hameed & Anor [2009] EWCA Civ 352 is a case with a complicated background – it originated in the collapse of BCCI, for heaven’s sake – but thankfully, the issues in this appeal were relatively straightforward, if novel.

In 1991 Mr & Mrs Qayyum jointly purchased a house. In July 1991, Mr Q declared in a deed that he held his interest on trust for Mrs Q absolutely and covenanted to execute a transfer if called upon to do so. The deed was not stamped, but apparently on the undertaking of Mrs Q’s solicitors to do so, this was not an issue.

In 2003, in litigation against Mr … Read the full post

Tis aw a muddle

A reminder, if one was needed, of the perils and pitfalls of constructive trust cases can be found in Elithorn v Poulter & Others [2008] EWCA Civ 1364

The problems in this case were not just the confused and confusing evidence (not only that of Dr Elithorn, who acted in person, but also the documentary evidence), but what can at best be called an unclear (extempore) judgment by the Circuit Judge in the County Court.

The facts, as far as one can tell, were that Dr Elithorn and Madeleine Ettinger had become friends following the death of Madeleine’s husband. Dr Elithorn owned a house in London which was on the … Read the full post

Agreements and constructive trust

Parris v Williams [2008] EWCA Civ 1147 was an appeal against an order that Mr Williams had 100% beneficial interest in one of two flats to which legal title was held by Mr Parris. It is of interest because it contains a challenge to the ways in which a constructive trust can be found to arise.

The facts were, briefly, that Mr Parris and Mr Williams were friends. Mr Williams was subject to an IVA. Mr Parris bought two flats (originally knocked into one, but a dividing wall was put up shortly after purchase). Mr Williams contributed nothing to the purchase monies and the mortgages were paid by rent from … Read the full post