Tag Archive for 'co-habitees'

Stack v Dowden revisited

Published
by
NL
on 23/04/2008
in FLW case note, Housing law - All and Trusts and Estoppel
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The Court of Appeal has effectively given guidance on the application of Stack v. Dowden [2007] UKHL 17 where one is faced with a transfer into joint ownership and no express statements as to shares in the property in Fowler v Barron [2008] EWCA Civ 377 (23 April 2008).

At 21:

To recapitulate, the important points decided by the House for the purpose of this appeal were as follows. The legal technique that the court will use to ascertain whether both joint owners who had been co-habitees had a beneficial interest is that of the common intention constructive test, rather than that of resulting trust. This will enable the court to take a holistic view of the whole of the parties’ conduct so far as it illumines their shared intentions about the ownership of the property. The court will not impose any particular allocation of property on the parties. It is not a question of the court deciding what is fair as regards the division of ownership but of determining what the co-owners’ shared intentions were as regards beneficial ownership. This was a deliberate policy choice to make the law respond to current needs: see per Baroness Hale at [60]. Where, as here, a house is transferred into the joint names of two individuals as their home, without any declaration of trust, the transfer will indicate that the parties intended to own the house in equal shares and thus the onus will be on the one (here, Mr Barron) who asserts that property is owned by them other than in equal shares to show that they had a shared intention to own the property in some other shares. The conduct that the court will take into account will include, but is not limited to, the financial contributions that they made towards the acquisition of the property or repayment of any loan raised for such purpose. The onus will not be easy for that person to discharge.

Evidence purporting to rebut the presumption of joint beneficial ownership must be of the parties shared intentions, or of a later shared change of intention.

35. In determining whether the presumption is rebutted, the court must in particular consider whether the facts as found are inconsistent with the inference of a common intention to share the property in equal shares to an extent sufficient to discharge the civil standard of proof on the person seeking to displace the presumption arising from a transfer into joint names.

36. The emphasis is on the parties’ shared intentions. As Lord Diplock said in Gissing v Gissing [1971] AC 886 at 906B-C, “…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 or 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.” This would be broadly consistent with the principles applicable to the interpretation of a written document, if that had set out their intention.

When assessing evidence, attention should be given to Lady Hale’s warning at para 68 of Stack:

In family disputes, strong feelings are aroused when couples split up. This often leads the parties, honestly but mistakenly, to reinterpret the past in self-exculpatory or vengeful terms. They also lead people to spend far more on the legal battle and is warranted by the sums actually at stake. A full examination of the facts is likely to involve disproportionate costs. In joint names cases it is also unlikely to lead a different result, unless the facts are very unusual.

In this case, the lower Court’s finding of no interest for Ms Fowler in the property (on the basis of contribution to purchase and mortgage as a resulting trust issue) was overturned, and a 50% interest found. In particular, shared household expenses, although none directly related to property expenses, were found sufficient to infer that it was not important to the parties who paid for what specifically or respective size of contribution. Evidence of mutual wills also played a part.

It was noted that Stack v Dowden involved a quite unusual separation of finances.

From this, it is clear that the presumption of joint beneficial interest is to be taken seriously. Rebuttal evidence will have to be pretty strong.

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What's mine is yours, unfortunately.

Published
by
NL
on 28/05/2007
in Housing law - All, assured-tenancy and secure-tenancy
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To everything there is a season and housing issues are no exception. While winter brings a flood of disrepair cases, Spring is the time for relationship breakdown.

Whether involving partners or spouses, this brings its own housing problems, particularly involving joint tenancies. And of course the once-happy couple have a joint tenancy. Prompted by Family Lore on Stack v Dowden, this is a much delayed look at relationship breakdown and joint tenancies.

For social tenancies (housing association or Council), relationship breakdown is a serious issue. The landlord cannot simply transfer the tenancy into the sole name of the remaining person, or at least not legally. This usually comes as an unpleasant surprise to that tenant.

Many social landlords operate a relationship breakdown policy, but these rely on the consent of the departing, no longer resident, partner to giving up their tenancy, so that a new sole tenancy be created for the remaining tenant. This consent is often not forthcoming, or the person has vanished.

If the ex-partner demands to return to the property, there is nothing to prevent them (save where there is a history of threat of abuse or violence).

Or perhaps the person who has had to leave, who might have children with them, say, or health issues or something else that would make them vulnerable for the purposes of a homeless application, actually tries to make such an application.

This person will be told that they are not homeless, that the joint tenancy means they have accommodation available to them and that it is reasonable for them to remain there, (unless, of course, there has been violence, or there is a direct threat of violence). Merely hating the sight of each other does not make it unreasonable for both parties to remain in the property.

Should this person then give notice to end the tenancy – which ends it for the remaining occupant as well – they will be deemed to be intentionally homeless and refused the full duty to accommodate by the local authority.

The Court does have a power to make occupation orders under s.33 Family Act 1996, whether the couple are married or not, but while an order to allow one person to occupy the property and the other person be excluded is possible, the Courts are very reluctant to use these powers except in such situations as domestic violence, for the clear reason that making such and order is depriving the excluded person of a valid property right. The Court has regard to ‘the housing needs’ of each party and where there are children, the Court may be keener to give an occupation order to the primary child carer, but this is not certain. The Court can also make an Order for the transfer of the tenancy into a sole name under s.53 of the Act for spouses, civil partners and co-habitants, but, as this is a permanent deprivation of a tenancy right, the Court will need very good reason to make such an order if the application is opposed.

The tenancy can also be transferred for the benefit of a child, under Childrens Act 1989, where there are children involved. As the benefit has to be for the child, not the tenant, any question of the child’s (primary) residence should be clear and sorted.

If the couple are married, the situation is a little better, as another of the few places in which the Court can actually re-assign tenancy rights is in divorce proceedings, under the Matrimonial Causes Act 1973. Taken as a part of the divorce, the Court may be more willing to make an Order as a part of the proceedings. However, this takes time and may be contested, so where there is an immediate housing problem, this isn’t an answer.

It may be that reform of the law on co-habitees property rights would give the Courts the power to re-assign tenancy rights outside of these limited situations, but at the moment, things are very difficult for ex-partners with joint tenancies.

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