23/04/2008

Stack v Dowden revisited

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.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

17 Comments

  1. simply wondered

    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.

    Reply
  2. Nearly Legal

    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.

    Reply
  3. Lost

    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 ;)

    Reply
  4. David Giles

    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.

    Reply
  5. Nearly Legal

    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.

    Reply
  6. sarah

    can any one explain to me the development of policy, principle and practice in trusts law in the Stack v dowden case. is this simply the issues concerning cohibitants and the development of the case.
    please help

    Reply
  7. NL

    Sarah, if you’ve got a specific question, ask away. If, on the other hand, you are looking for the answer to an essay question on, for instance, ‘the development of policy, principle and practice in trusts law in Stack v Dowden’, we don’t, in fact can’t, spend our time answering students’ equity and trusts questions. This is not that kind of site.

    Reply
  8. simply wondered

    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.

    Reply
  9. Hendryk

    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).

    Reply
    • NL

      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.

    • dave

      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.

    • NL

      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 ;-)

    • Francis Davey

      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.

    • NL

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

    • dave

      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.

    • NL

      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.

    • dave

      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.

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