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CO-OWNERSHIP (Dixon)
 Also called concurrent CO
 Law of CO operates whenever 2/more people enjoy rights of ownership of land at same
time, whether that be freehold/leasehold land.
 Co-owners may be married, civil partners, unmarried partners, family members, friends,
neighbours or business partners, or stand in any other relationship to each other that we
can think of.
 Law of CO is a product of statute and the common law
 Social and economic changes also have had a great impact on frequency with which CO
arises and the consequences it brings.
 No longer true k CO limited to large country estates/to land held for investment purposes.
Neither is it true that CO can arise only on a deliberate conveyance of land to 2 or more
people.
 Implied creation is CO by means other than formal conveyance.
 Much of the law of CO today concerns rights and responsibilities of co-owners of fam
home, and the way in which they interact with banks, building societies and other
purchasers. This change in the role away from purely commercial or investment has
generated significant changes to scheme of CO. Achieved by TOLATA 1996

Nature and Types of Concurrent CO

 SIMULTANEOUS enjoyment of property
 Before 1 Jan 1926, concurrent CO of property could take a variety of forms but CO since
1 Jan 1926 will either be by way of JT or TC

JT
 Each co-owner is treated as being entitled to the whole of that land
 No distinct “shares”
 Only 1 formal title – that title owned jointly by all of the JTs
 RT – 1 title – 1 title number – each co-owner registered as proprietor
 URT – 1 set of title deeds specifying co-owners
 Following are attributes of a JT, the absence of any one is fatal to the existence of this
form of CO:

A. The right of survivorship (the ius accrescendi)

 If 1 JT dies during the existence of the joint tenancy, his interest in joint tenancy (right to
enjoy whole of land and cash value on sale) AUTOMATICALLY accrues to remaining
JTs
 When JT dies, no formal conveyance/written doc is needed to reflect new status quo
 Right of survivorship takes precedence over any attempted transfer on death
 Gould v Kemp (1834): in order to pass property on death, JT must have been brought to
an end BEFORE death – usually by being severed and turned in TC
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 JT can either be very useful – avoids need for formal documentation when a co-owner
dies, or very unfair, as where co-owner dies and is unable to leave an interest in property
to his fam.

B. The 4 Unities
 AG Securities v Vaughan (1988) (HL): flat-sharing arrangement whereby each sharer
signed their own agreement didn’t amount to a single JT of whole premises because of
the obviously distinct rights that each had
 Unities enable us to distinguish JT from TC:
1. Unity of possession:
 Each JT is entitled to physical possession of whole land
 Includes right to participate fully in fruits of possession
 In some circumstances, 1 JT may be excluded from land on terms and
conditions (ss. 12 and 13 TOLATA) – this doesn’t destroy unity of
possession per se
2. Unity of interest:
 Each JT’s interest in property must be of same extent, nature and duration
3. Unity of title:
 Each JT must derive their title from same conveyancing docs
 In certain circumstances, estate owners may still have JT even though as a
matter of formality they have each signed different docs
 Antoniades v Villiers (1990):
o Unmarried couple took a lease of a 1-bedroom flat and signed
separate documents
o In the same circumstances, which included the fact that L had
provided double bed and there was only 1 bedroom, court took
view that it was absurd to regard these 2 people as having separate
and independent rights to land
o As a matter of law, the 2 JTs derived their title from the same doc,
even though there was more than 1 piece of paper
 Simple fact that different docs may have been signed by potential co-
owners doesn’t automatically mean that there’s no unity of title
4. Unity of time – interest of each JT must arise at same time

TC
 Undivided shares in land
 Each co-owner has a distinct and quantifiable share in land. This doesn’t mean that a
particular tenant can physically demarcate a portion of land and claim it as his own. Land
is still “undivided” and tenant in common owns a quantifiable share in it, which can be
realised if and when property is sold.
 Unity of possession must exist
 None of the other 4 unities, apart from possession, MUST be present for TC to exist but it
may well be that they are.
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 Right of survivorship doesn’t apply to TC. It is for this reason that TC is often preferred
where co-owners aren’t closely connected.
 TC may come about through “severance” of JT

Effect of LPA 1925 and TOLATA 1996

 TOLATA didn’t change basic principles of LPA
 Reasons for 1925 reform stem from paramount policy of ensuring free marketability of
co-owned land

Before 1 January 1926

 It was possible for a JT and TC to exist in both a legal and an equitable estate in land.
 If a purchaser wished to buy the legal title of land that was co-owned, he would have to
have investigated either 1 title (JT) or all of the individual titles of the various co-owners
(TC).
 While this caused no great hardship for a purchaser investigating the 1 title held by JT
legal owners, if land was co-owned under TC, complexity of transaction increased as
number of TCs increased.

From 1 January 1926

 TC of LEGAL title to land CANNOT exist – s.1(6) LPA 1925
 Only JTs of legal title are possible and this is true irrespective of words used when land is
transferred to co-owners and irrespective of their intentions.
 This must mean that JT of a legal title is “unseverable” – s.36(2) LPA 1925 – because it
is impossible to turn it into a legal TC
 JT of legal title = special. The persons to whom the legal title to the land is conveyed –
intended co-owners of legal estate- are TRUSTEES of legal title under a statutorily
imposed trust of land – ss. 34 and 36 LPA 1925
 This statutory trust is defined in LPA and TOLATA but essentially imposes on trustees a
duty to hold land for persons beneficially interested in land.
 Although legal title to co-owned land must be held under JT, equitable title may be held
either as JT or TC. Which form of equitable co-ownership exists will depend on words
used to create co-ownership in docs, intentions of parties and surrounding circumstances.
 If the land is purported to be conveyed to more than 4 people, it’s the first 4 named in
conveyance who become JT trustees of land, with all 5 or 6, and so on, owning in equity
as either JTs or TCs as the case may be.

The Distinction between JT and TC: The Equitable Interest

 If the unities of interest, title or time are absent, a JT in equity cannot exist. In such a
case, there must be a TC.
 If the original conveyance to co-owners stipulates expressly that they’re JTs or TCs of the
beneficial/equitable interest, this is normally conclusive as to nature of their co-
ownership in equity – Goodman v Gallant (1986):
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 Limited exception: where clear unconscionability so as to justify a

departure from express declaration on grounds of PE – Clarke v Meadus
(2010)
 Roy v Roy (1996): conveyance to P and D jointly was held conclusive
between them as to the existence of a JT, despite the fact that D had
contributed significantly more to purchase and upkeep of property over the
years, and that P had lived in property for only a few months just after it
was purchased.
 Written declaration of the nature of the equitable interest is conclusive
only for the parties to that declaration.
 Written declaration is conclusive only if valid under general law – it can
be attacked on the basis that it was procured by fraud, misrep, undue
influence or any other vitiating factor.
 Valid written declaration may be departed from – and the shares and type
of equitable co-ownership varied – if the later conduct of one of the parties
amounts to an estoppel, so preventing them relying on written declaration.
 Carlton v Goodman (2002), McKenzie v McKenzie (2003), Stack v
Dowden (2007), Jones v Kernott (2011): parties are bound only when a
declaration refers clearly to EQUITABLE interest. In these cases, there
were 2 legal owners who necessarily were JT trustees but there was no
express declaration as to EQUITABLE ownership.
 Result in Carlton and McKenzie was that equitable ownership resided
solely in one party – the main provider of purchase price – thus
demonstrating that being a LEGAL owner under an expressly declared
conveyance doesn’t guarantee a share of equitable title.
 In Stack, Ms. Dowden and Mr. Stack were JTs of legal title. Ms. D
successfully claimed a larger share of the equitable interest because
conveyance to them said only that they were JTs in law and nothing about
equitable title.
 Jones v Kernott: SC confirmed above approach
 If words of severance are used, then a TC will exist in equity.
 In the absence of an express declaration concerning the equitable interest or words of
severance, and if all of the 4 unities are present, there is a presumption that equity follows
the law:
 Exceptions to this, being situations in which the presumption that “equity follows
the law” can be displaced by a counter-presumption, arising from the facts, that a
TC must have been intended instead.
 Cases in which it’s recognised that existence of JT may cause hardship to co-
owners, usually because right of survivorship would be inappropriate OR where
there is evidence that the parties had a common intention to hold other than as JTs

The Nature of the Unseverable Legal JT: The Trust of Land

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 Owners of legal title hold property as JT trustees of land with powers specified in LPA
and TOLATA.
 S.9 TOLATA: they may delegate any function to beneficiaries BUT only trustees may
give a valid receipt to a purchaser if land is sold.
 Trustees under no duty to sell land.
 If the trustees cannot agree whether to sell land at an appropriate time, any interested
person may apply to court under s.14 TOLATA
 TOLATA came into force on 1 Jan 1997 and amended LPA 1925.
 Many of the 1996 Act’s changes simply brought legal structure of CO into line with the
way in which courts already interpreted 1925 legislation.
 Attributes of unseverable legal JT under trust of land established by TOLATA:
1) Trustees (legal owners) under a duty to hold land for persons interested in it:
 Although trustees must have regard to the wishes of the beneficiaries,
TOLATA gives them the powers of an absolute owner – s.6
 Trustees may delegate “any of their functions” to a beneficiary of full age
– s.9
 Trustees’ powers may be restricted by the instrument creating the trust –
s.8
 Not everything done by a trustee will be a “function relation” to the trust.
So, in Brackley v Notting Hill Housing Trust (2001), giving of notice by
1 JT trustee of a lease wasn’t such a function in case of PT
2) If trustees don’t sell land, they hold proceeds on trust for equitable owners –
equitable owners’ interests are overreached.
3) S.3 TOLATA abolishes “doctrine of conversion” so now interests of equitable
owners behind trust are interests in that land (proprietary rights) for all purposes.
4) Trustees have no DUTY to sell land, they do have a power to do so.
 A sale (including a mortgage) by ALL of the trustees, 2 or more in number, will
overreach interests of equitable owners – ss. 2(1)(i) and 27 LPA
 If one trustee, interests of equitable owners cannot be overreached (Williams & Glyn’s
Bank v Boland 1981). Whether equitable interests can have priority over interest of a
purchaser will depend on law of RT or URT.
 If trust created by disposition, exercise of trustee’s power of sale can be made subject to
an express requirement that consent of beneficiaries be obtained – s.10 TOLATA

Advs. of 1925 and 1996 Legislative Reforms

 Prior to 1 Jan 1926, any person wishing to purchase co-owned land would have to
investigate either 1 title of JTs or individual titles of each TC:
 Time consuming and expensive.
 Objection of just 1 TC might prevent land from being sold/mortgaged, even if
this would’ve been for benefit of every other co-owner.
 By abolishing TCs at law, LPA has ensured that there is but 1 title to investigate:
the legal JT.
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 Number of legal JTs is limited to max of 4 so that purchaser need only concern
himself with obtaining consent of 4 people
 Power of overreaching is that it will operate even if no money is actually paid over in 1
large sum provided that a sum is PAYABLE should trustees wish to draw on it:
 State Bank of India v Sood (1997): overreaching occurred by reason of the fact
that trustees had mortgaged property in return for an overdraft facility rather than
receiving a 1-off capital payment.
 Existence of a power to sell under trust of land prevents co-owned land becoming
inalienable should there be a dispute between co-owners (or other interested persons)-
s.14 ensures that co-owned land will not stagnate through inability to secure agreement of
all legal owners

Disadvantages of Trust of Land as a Device for Regulating CO

Disputes as to sale
 Difficulty not as pressing as it was prior to 1996 Act cuz trustees no longer under DUTY
to sell
 S.14 = solution to such disputes
 Court is directed to have regard to matters – s.15.
 S.15 list isn’t exhaustive.
 LC: much of the pre-1996 case law relevant in interpreting ss. 14 and 15 TOLATA.
 Factors considered by court in deciding whether to exercise its discretion either under old
s.30 or under s. 15 TOLATA:
1) Whether property is still needed as a matrimonial home (Jones v Challenger
1961) or for the home of an unmarried couple.
2) Whether property is required in order to provide accommodation for duration of
lives of co-owners, or that of survivor (Harris v Harris 1996) or until occurrence
of any event. Chun v Ho (2001) mein sale was postponed until completion of
education of 1 of the co-owners.
3) Whether property is needed for provision of a family home for children of a
relationship that has broken down. Criterion employed to good effect in Edwards
v Lloyds TSB (2004) in which co-owner able to postpone a sale for 5 years in
order to safeguard a home for children of relationship. Edwards’s v Royal Bank
of Scotland (2010) mein possibility that a grandchild might visit wasn’t enough.
4) Whether property is required in order that a business may continue, the land
having been purchased for that purpose – Bedson v Bedson (1965)
5) Where person seeking a sale may be estopped from obtaining an order for sale by
their conduct, such conduct having been relied on by other co-owner. This has
echoes of PE.
6) Misconduct by person applying for sale or his legal advisers, as in Halifax
Mortgage Services v Muirhead (1998) where sale refused because C’s solicitors
wrongly altered relevant docs.
7) General circumstances of beneficiaries like age, health, suitability of premises.
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8) Clarity with which intentions of parties are established – written instrument has
particular weight (Cawthorne v Stephens- Dunn 2015)
9) Creditor shouldn’t be kept out of his money unless there are clear reasons to
refuse a sale – Bank of Ireland v Bell (2001). Fred Perry v Genis (2014) mein
although s.4 gave equal weight to all factors, case law established that normally a
creditor’s claim to sell would succeed.
10) Where one of the co-owners has been adjudged bankrupt and his trustee in
bankruptcy wants a sale on behalf of general creditors, s.15 doesn’t apply.
Instead, court must apply s.335A Insolvency Act 1986 and statutory preference
for a sale.

When is it likely that a court will order sale?

 No duty to sell so pre-1996 statements unequivocally favouring a sale of co-owned
property in cases of dispute must be read with care.
 Dear v Robinson (2001): wishes of beneficiaries were critical so sale postponed
 Pritchard Englefield v Steinberg (2004): sale ordered at request of a creditor holding a
charging order despite the objections of an equitable owner and this followed TSB v
Marshall (1998) where a sale was ordered even though there were children living at the
property because there was no realistic prospect of the debt being repaid, confirmed by
Bank of Ireland v Bell (2001).
 First National Bank v Achampong (2003) and Fred Perry v Genis (2015) mein even
the fact that non-consenting owner had priority over creditor couldn’t stave off a sale.
 Exceptions hain. So, in Mortgage Corporation v Shaire (2001), rights of creditors
shouldn’t prevail automatically and in Edwards v Lloyds TSB (2004), sale was
postponed for 5 years because of needs of children and fam, even though this would keep
mortgagee out of its security.
 National Westminster Bank v Rushmer (2010): sale at request of charge was initially
postponed for 2 years because of prospect of litigation which might realise enough funds
to pay co-owners’ debts. Sale was later ordered when it became clear that the litigation
wouldn’t be successful.
 Court is empowered under s.14 to revisit a previous application if circumstances change
before sale actually taking place so in Dear, a previous order for sale was rescinded
because circumstances had changed and a majority of beneficiaries no longer wanted
immediate sale.

The Special Case of Bankruptcy

 S.15 factors don’t apply
 App made under s.14 but s.335A Insolvency Act provide list of relevant factors
 Enterprise Act 2002: a trustee in bankruptcy should apply for sale of property within 3
years of bankruptcy, else he risks property returning to bankrupt free from claims of
creditors
 If one person interested in co-owned land is made bankrupt, their assets vest in a “trustee
in bankruptcy”
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 Trustee in bankruptcy will want to sell co-owned property – will be resisted by other
legal/equitable owner
 S.335A not exhaustive list but contains things like interests of bankrupt’s creditors,
conduct of bankrupt’s spouse as a contributing factor to bankruptcy, needs of spouse and
needs of children, and all other circumstances but not needs of bankrupt.
 If app under s.14 is made more than 1 year after bankruptcy, interests of creditors
outweigh interests of resisting co-owners unless circumstances are “exceptional”.
 Harrington v Bennett (2000): app by trustee in bankruptcy for sale more than 1 year
after bankruptcy was granted by court. It wasn’t an exceptional circumstance that
bankrupt appeared to have a purchaser in view who might pay a higher price than that
achievable under sale by trustee in bankruptcy.
 Nor is it exceptional that there might be a fam who would lose their home – Begum v
Cockerton (2015)
 Lawrence Collins J in Dean v Stout (2004):
 Presence of exceptional circumstances is a necessary condition to displace the
presumption that the interests of the creditors outweigh all other considerations,
but the presence of exceptional circumstances doesn’t debar the court from
making order for sale.
 Typically exceptional circumstances relate to personal circumstances of one of the
joint owners, such a medical condition.
 Categories of exceptional circumstances not to be categorized or defined and
court should make a value judgment after looking at all of the circumstances.
 Circumstances must be truly exceptional and as per Re Citro (1991), this means
matters that are outside the usual “melancholy consequences of debt and
providence”.
 Not uncommon for a partner with children to be faced with eviction in
circumstances in which sale will not produce enough to buy a comparable home
in same neighbourhood or elsewhere. Such circumstances cannot be exceptional.
 Creditors have an interest in order for sale being made, even if whole of net
proceeds will go towards expenses of bankruptcy and the fact that they will be
swallowed up in paying those expenses isn’t an exceptional circumstance. Neither
is it an exceptional circumstance that a creditor would NOT suffer by reason of
delaying sale.
 Up to the person trying to prevent sale to adduce evidence of exceptional circumstances –
Begum.
 We know from Dean V Stout what is NOT exceptional, it remains uncertain what
actually will qualify so as to justify a postponement of sale beyond 1 year period.
 Fact that bankrupt or their spouse is terminally/seriously ill has been held sufficiently
grave as to justify postponement of sale – Re Bremner (1999)

The position of a purchaser who buys co-owned land: when overreaching

occurs
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 If a purchaser buys co-owned land from 2 or more legal owners, then interests of
equitable owners are overreached.
 City of London Building Society v Flegg (1988) (HL): mortgage by 2 trustees
overreached interests of Mr. and Mrs. F so as to give the mortgagee a prior right to
possession when trustees defaulted on mortgage payments. Same in RT and URT.
 Overreaching occurs then purchaser obtains land free from equitable rights and those
equitable rights take effect in proceeds of sale even if equitable owners objected to sale,
knew nothing about it or actually get nothing from proceeds of sale as in Flegg.
 Not affected by s.11 TOLATA whereby trustees must consult equitable owners and in so
far as is consistent with general interest of trust give effect to such wishes. S.11 imposes
duty to consult and pay attention to such wishes, NOT a duty to follow them slavishly.
 HSBC v Dyche (2009):
 H & W held on trust for C
 H & W sold land to W alone. W then mortgaged land and defaulted. Claim by
HSBC as mortgagee
 Principle: this could have overreached C
 Held: it didn’t
 Overreaching doesn’t work in such circumstances because purchaser (W) isn’t in
good faith., sale wasn’t “authorised” by equitable owner (C)
 Seems out of place where good faith of purchaser is largely irrelevant
 Better view : W was trying to use statute (s.2 LPA) as an instrument of fraud

If consents are required

 If the disposition originally conveying the land to the co-owners makes the trustees’
powers (e.g. sale) dependent on obtaining prior consent of equitable owners, there is a
potential conflict with ability of trustees to sell land and overreach equitable interests
 Act not clear on this point.
 Trustees could apply under s.14 for removal of consent requirement
 RT: consent requirement is likely to be entered on register of title in form of Restriction
against dealings
 URT: no mechanism to register it under LCA.
 S.16 (applies ONLY to URT): purchaser not affected by trustees’ failure to observe a
consent requirement included in a disposition provided that the purchaser had no actual
knowledge of consent requirement.

If consents aren’t initially required

 Equitable owner may apply under s.14 for a court order that the trustees seek his/her
consent before a sale/mortgage. Not precluded by s.14
 Controversial for in Coleman v Bryant (2007), court wasn’t prepared to enter a
restriction requiring consent of equitable owner before a sale because this would destroy
concept of overreaching

When overreaching does not occur

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 S.2 (1) (ii) and 27 LPA require money to be paid to at least 2 trustees in order to
overreach equitable interests behind trust of land
 Usual reason why overreaching doesn’t occur = 1 trustee hay as in Williams & Glyn’s
Bank v Boland (1981)
 RT: if equitable owner is a person in discoverable AO of property at the time of the
purchase or mortgage, he will have an interest which overrides interest of
purchaser/mortgagee under para 2 Sch 3 of LRA 2002
 URT: these equitable interests cannot be registered as land charges. Consequently,
whether they bind a purchaser/mortgagee who has NOT overreached depends on doctrine
of notice. Usually, if equitable owner is residing in property, purchaser/mortgagee will be
deemed to have constructive notice of their interest, and be bound by it.
 In both RT and URT, a purchaser who has failed to overreach and who is apparently
subject to priority of equitable interest, nevertheless may be able to plead that equitable
owner has expressly/impliedly consented to sale/mortgage
 Consent doesn’t exist simply because equitable owner has KNOWLEDGE of proposed
sale/mortgage but rather this knowledge must be combined with circumstances that
indicate an acceptance of priority of purchaser/mortgagee
 Examples:
1. Express consent.
2. Equitable owner may have so acted in relation to mortgage that consent can be
implied from actions
3. Equitable owner is aware that mortgage is the only way in which land can be
purchased
4. Wishart v Credit & Mercantile (2015): equitable owner may be taken to have
authorised trustee to complete transaction simply because equitable owner knows
they aren’t legal owner. In this case, this occurred even though equitable owner
was completely unaware of proposed mortgage. Extraordinary decision difficult
to justify.
5. Genuine consent to 1 mortgage will operate in favour of new mortgage if second
mortgagee is providing funds to pay off first mortgage
6. Equitable owner who knows that legal owner is about to mortgage but who
doesn’t consent expressly/impliedly shouldn’t in principle lose priority of his/her
interest simply because of that knowledge

Position of the equitable owners: probs and proposals

 Little comfort to equitable owner who didn’t want to have land sold, especially as their
share of proceeds may not be sufficient to pay for alternative accommodation.
 Rationale for overreaching disappears completely if no purchase money was actually paid
on transaction as in Bank of India v Sood (1997)
 LC suggested 3 alternative reforms to law now defunct + accepted that Flegg was an
unusual case- need to ensure alienability of co-owned land has priority over policy of
protecting occupiers:
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1. Overreaching shouldn’t be possible unless 1 of the trustees is a solicitor or

licensed conveyancer. Poor solution – expensive + outsider becoming involved in
personal affairs.
2. Overreaching shouldn’t be possible if equitable owner has registered their
equitable interest. Would require amendment to LRA as such interests are
currently not capable of protection via notice. This solution presupposed that
equitable owners would be PREPARED to register even if they KNEW they
should.
3. Overreaching shouldn’t be possible without consent of all of the equitable owners
who are of full age and in possession of the property. Would destroy entire
overreaching mechanism. Concept of overreaching is precisely that a purchaser
should be able to buy co-owned land without having to search for every legal and
equitable owner and obtain their consent. This proposal would remain law to its
pre-1926 state.

The position of the equitable owners faced with overreaching: the prob in
perspective
 1 trustee tou in great majority of cases overreaching won’t occur
 If 2 trustees, overreaching can occur but in most residential property cases, 2 trustees will
also be the ONLY 2 equitable owners. There is no difficulty because either co-owner can
object to a sale in their capacity as legal owner
 Only where there are 2 trustees of land and DIFFERENT equitable owners that probs
really occur. How often does this factual situation occur in context of residential
property? Facts of Flegg didn’t arise until 70 years after LPA – Flegg exceptional factual
scenario hay bro so stop this shit

The Q of possession and occupation

 S. 12: equitable owner has a right to occupy land if this was purpose for which trust came
into existence. Such a right can be excluded by trustees in exceptional circumstances,
under s.13, but this will be rare in respect of residential property and cannot, in any event,
result in removal of person already occupying land unless they consent – s.13(7)
 Right to occupy is a right to occupy physical land itself, not any subsidiary interest.
 So in Creasey v Sole (2013), complex family history meant that C had an equitable right
to some land but also an equitable right to his mother’s equitable share in other land. This
wasn’t a share in land itself so he couldn’t occupy land and was liable in trespass.
 Medlycott v Herbert: a beneficiary didn’t have a right to occupy under s.12 because this
wasn’t a purpose of trust even though trustees did have power to permit occupation by
beneficiary

The payment of rent

 Before TOLATA, difficulties in requiring 1 co-owner to pay rent to other if only 1
enjoyed occupation of property
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 TOLATA k baad courts would order payment of monetary sum where it was equitable to
do so, irrespective of theoretical niceties.
 S.13: compensation may be paid by 1 co-owner occupying land to exclusion of another if
certain conditions are met

The Express and Implied Creation of CO in Practice: Express, Resulting and

Constructive Trusts
Express Creation
 Land deliberately conveyed to 2 or more people who will be legal owners and in absence
of any statement to contrary, will also be equitable owners.
 Roy v Roy (1996): 2 bros held bound by joint ownership of house transferred to them
both
 Presumption challenged by RT, CT, PE
 Possible for conveyance of land expressly to declare who are equitable owners and nature
of their ownership
 For express trust of land to be valid, it must satisfy s.53(1) LPA:
 Written evidence must be declaration of EQUITABLE interest rather than for
some other purpose
 Stack: statement in conveyance that surviving trustee could give valid receipt for
any capital monies couldn’t be taken as declaration of nature of equitable interest
 Exception: person not party to VALID express declaration of trust may establish
beneficial interest in property by proving RT/CT/PE – s.53(2) k through exempt
then
 If the beneficial interests are expressly declared in writing, this is conclusive as to
beneficial ownership for the parties to that express declaration:
 Persons who’re parties to writing that establishes trust cannot plead thereafter
RT/CT to establish different interests
 Exceptions: if express declaration procured by fraud/vitiating factor + PE

PMRT
 Unless established that money given to legal owner by way of gift/loan, C may have
equitable interest in land in direct proportion to their contribution to purchase price
 Deposit: Halifax Building Society v Brown (1995)
 Notional payment because of a “right to buy” discount off the purchase price: Richards v
Woods (2014) – such a discount used to quantify share
 Contribution must be made to acquisition of property, not merely to its repair.
 Doubt whether equitable interest arises if financial contribution made to purchase price
over period of time – non-legal owner contributes to repayment/financing of mortgage
used to purchase property:
 Theory: RT can arise only if payments are made at the time of the acquisition of
the property
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 Repayment of mortgage monies not payment to seller of property but payment to

lender
 Curley v Parkes (2004): Court denied Mr. Curley an interest in property because
such mortgage repayments as he did make were made after date of acquisition of
property
 Above is narrow view of role of RTs
 Regard mortgagee as agent of purchasers, paying at time of purchase, with
mortgagee being repaid as agent with interest by contributors?
 Cases before Curley assumed that payment of mortgage instalments Carlton v
Goodman (2002), McKenzie v McKenzie (2003)would suffice
 Laskar v Laskar (2008): mortgage repayments could be treated as contribution
to purchase price
 Stack:
 Majority with Neuberger disagreeing on this point: RTs shouldn’t normally be
used as basis for quantifying interest in another’s property at least in respect of
property used as fam home because RT is narrow and focuses on only one aspect
of party’s lives – payment of money
 Fam relationships are complex and so a better approach was to use CTs
 Confirmed by PC in Abbot v Abbot (2008)
 Jones v Kernott: in the case of the purchase of a house/flat in joint names for joint
occupation by a married/unmarried couple, no presumption of RT arising from their
having contributed to deposit in unequal shares
 Above stated in context of quantification case and so rejection of RT is obiter for
acquisition cases

CT
 Legal owner and C must share express/inferred common intention that C should have
some interest in land, which intention is relied on by C to their detriment
 Lloyd’s Bank v Rosset (1991):
 Husband and wife arranged to purchase farmhouse
 Legal title conveyed to H
 Renovation = joint venture
 Property mortgaged – default – bank sued
 Wife: I have equitable interest by way of CT
 Claim rejected
 2 requirements for CT: common intention + detrimental reliance
 Neither Stack nor Kernott dispute this statement of general principle but rather they may
have enlarged circumstances in which common intention may be established
Common intention in acquisition cases: 3 routes to an interest
 AI v MKI & CPS (2015): C must adduce evidence of common intention, not merely
assert that it exists
 Rosset: common intention established by 2 ways but Stack said k no there are actually 3
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 Stack and Kernott however aren’t acquisition cases so the third route they introduce
may not apply. But in Stack, intention by majority for reasoning to apply to acquisition
claims and applied as such in Abbott, Hapeshi v Allnatt, Geary v Rakine and Ullah v
Ullah.
 Route 1 - Express discussions:
 Based on words used and discussions held, however imperfectly remembered and
however imprecise terms may have been
 Must have been an overt, express statement/agreement, promise/assurance
 Promise enough to trigger CT even if not genuine on part of legal owner. So, in
Eves v Eves (1975), a promise was held to have been made where legal owner
said, by way of excuse, that the only reason that property wasn’t conveyed
originally to woman was cuz she was too young
 Doesn’t matter that express assurance occurs after legal owner has acquired
property
 James v Thomas (2007): assurances given by legal owner to C when they were
living together that were NEITHER intended nor understood as promise of an
interest cannot qualify
 Route 2 – inferred common intention from payments:
 Rosset: the ONLY circumstances in which court may INFER common intention
is if there have been direct payments towards purchase price
 Means that all manner of other conduct that persons sharing a home might engage
in cannot lead to inference of common intention
 Oxley v Hiscock (2004): attempted to broaden circumstances in which person
might prove a common intention by allowing such an intention to be inferred
from all of the facts and circumstances of the case – catalyst for Stack and
Kernott
 Route 3 – inferred common intention from the parties’ entire course of conduct:
 Baroness Hale in Stack talked about some of the other factors which may be
considered:
1. Advice/discussions at time of transfer
2. Reason why home acquired in joint names
3. Why survivor authorised to give receipt for capital moneys
4. Purpose for which home acquired
5. Nature of parties’ relationship
6. Whether they had kids
7. How purchase was financed
8. How parties arranged their finances
9. How they discharged outgoings on property and other household expenses
No imputed common intention in acquisition cases
 Stack: imputation not permissible
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 Kernott: difference between inferred and imputed; former is intention that parties
already had, evidenced by actions; latter is intention that parties would’ve had had they
thought about it
 Capehorn v Harris (2015): not possible to impute common intention in acquisition case
Detrimental Reliance
 Equity will not assist a volunteer
 There is no unconscionability if a promise has been made that has had no impact on the
behaviour of C
 Denning in Greasley v Cooke (1980): if there is evidence of detriment, there should be a
presumption of reliance
 This is so even if there is evidence to suggest that C would’ve acted as she did for other
motives. So, in Chun v Ho (2001), C successful even though her actions motivated in
part by her high regard and affection for legal owner.
 Detriment may take many forms; can be in conduct of C, such as doing extraordinary
work about house as in Eves v Eves (1975) and Ungurian v Lesnoff (1990); may be
financial; may be the giving up of other opportunities.
 Rosset and Stack: actual payments made towards purchase price/conduct that gives to
common intention may also qualify as the detriment

The nature of the interest generated and quantification of share in acquisition

cases
 The equitable interest will be held by way of TC cuz only unity of possession is present.
 Unusual case of HSBC v Dyche (2009): 2 Cs successful in establishing an equitable
interest under CT and between themselves were JTs
RT quantification in acquisition cases
 Interest quantified in direct proportion to amount of price paid
CT quantification in acquisition cases
 3 possibilities:
1. Clough v Killey (1996): if the terms of the express common intention are clear as
to existence and size of equitable interest, then court shouldn’t depart from this as
basis for quantification
2. When common intention as to acquisition is inferred, it may well be possible also
to infer an agreement as to size of share. Chadwick in Oxley: each is entitled to
that share which court considers fair having regard to whole course of dealing
between them in relation to property
3. If no express/inferred common intention, possible to impute intention. Only
possible to impute intention as to size IF existence of share has been established
by express/inferred common intention.
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When there are 2 or more legal owners: varying and quantifying the equitable
interests
Varying the equitable interest of joint legal owners when there’s no written declaration
 If no express written declaration, then open to one of the legal owners to claim that the
equitable interest shouldn’t be shared equally
 Principles in play:
1. Stack and Kernott: equity follows the law – is a presumption and can be rebutted
2. Shares determined in accordance with how much they actually paid
3. As in Stack and Kernott themselves, possible in exceptional case to use CT to
determine shares and vary presumption of 50/50. Must be based on an express or
inferred common intention, but NOT an imputed one – Barnes v Phillips (2015)
4. Possible that one of the parties could claim an enlarged share on basis of estoppel

Statutory Powers
 Where C unable to prove CT, RT or PE, no equitable interest unless he can rely on
statutory jurisdiction
 If couple married/in civil partnership and then divorce/separate – Matrimonial Causes
Act 1973 + Civil Partnership Act 2004
 Court has power under s.37 Matrimonial Proceedings and Property Act 1970 to award
beneficial interest consequent upon spousal improvements to property
 After Stack and Kernott, is the law too uncertain?
 When will a C be successful and what factors may count towards proving the common
intention?
 How can 3rd parties, such as lenders, discover who owns the equitable interest, especially
if they cannot even rely on the certainty of a jointly held legal title?
 Is it really appropriate for judges to be inventing a discretionary-based jurisdiction to do
what is fair when, perhaps, these types of judgment about society and families should be
left to Parliament?
 LC in Cohab: The Financial Consequences of Relationship Breakdown recommends
creation of statutory, structured discretion whereby courts would have the power to alter
the property rights of certain types of unmarried couple who had lived together as a
couple
 The absence of a statutory discretion may well be behind the development of a discretion
by Stack and Kernott.
 Simple way to keep mortgagee out of possession of fam home after non-payment of
mortgage is to prove that non-legal owner has acquired equitable interest before
mortgage, which then overrides bank’s interest. Sometimes, some cases feel as if alleged
co-owners have manufactured an interest in favour of non-legal owner precisely to defeat
claim of creditor.

Severance
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 Any JT may sever their equitable joint tenancy and thereby turn it into a TC
 Only possible to sever equitable joint tenancy (not that of legal title) because TCs may
exist only in equity
 After severance has occurred, if there were only 2 joint tenants, necessarily both are now
TCs but if there were 3 or more JTs, the others can remain as JTs between themselves.
Statutory notice: s. 36(2) LPA
 Any equitable JT may give notice in writing to other JTs of his intention to sever JT; that
co-owner’s interest severed and he becomes TC
 Severance is entirely unilateral; doesn’t require agreement/consent of other JTs
 So long as there is evidence that written notice was sent, it seems that it doesn’t have to
be received by the other JTs to be effective to sever
 Kinch v Bullard (1998): notice sent by 1 JT to other – arrived at receiver’s address – he
never saw it – notice destroyed by sender- held: notice served by delivery
 S.196 (4) LPA: service is effective if sent by registered post. Above letter sent by
ordinary 1st class post but same result achieved by analogy
 Notice may take many forms:
1. Re Draper’s Conveyance (1969): summons claiming sale of co-owned property
was held to constitute written notice of severance
2. Quigley v Masterson (2011): app to Court of Protection qualified
 Oral agreement not to sever can prevent later act of severance by written notice taking
effect. So, in White v White (2001), property conveyed expressly to 3 people as
equitable JTs and oral agreement not to sever – clear attempted severance by written
notice under s.36(2) held ineffective
 The whole point of severance is that it can destroy an expressly declared equitable joint
tenancy, so perhaps the case is best explained on the basis that the person wishing to
sever was estopped from so doing by their conduct (the oral agreement) because it would
have been unconscionable in the circumstances to permit that severance
 1 possible limitation to statutory severance in words of 36(2) itself – seems to encompass
only those situations in which legal and equitable JTs are same people
 This limited interpretation hasn’t been adopted and statutory severance is presumed to be
available for all JTs, whether they’re also legal owners or not. But this generous
interpretation hasn’t been tested explicitly either. It is rather that there is no case limiting
36(2).
 Common law recognises 3 other ways in which severance is possible – Williams v
Hensman (1861):

1. An act operating on one’s own share

 Leaving one’s share in a subsisting JT by will can never constitute severance because the
right of survivorship operates immediately on death and takes precedence over
testamentary dispositions
 Act operating on JT’s share must be valid and enforceable. Given that nearly all
dispositions of an interest in land must be in writing (s.2 LP (MP) A 1989), the act of
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severance by way of mortgage, sale or lease (over 3 years) must be in writing and
otherwise enforceable if it is to sever.

2. Where JTs agree to sever by mutual agreement

 Those agreeing are taken to have severed the JT and constituted themselves as TCs
 Agreement need not take any specific form and it need not be in writing
 It need not be enforceable under general law and may be inferred from surrounding
circumstances
 Fact of agreement severs JT
 No need for agreement to be acted on to effect a severance – Hunter v Babbage (1994)
 Severance by this method may occur when co-owners agree on precise distribution of
property on breakdown of relationship – Re McKee (1975)
 Agreement must contemplate an intention to sever JT (ownership) and not merely amount
to an agreement as to use of property – Nielson-Jones v Fedden (1975)
 Davis v Smith (2011):
 Agreement by a separating couple to put their house on market and share
proceeds wasn’t, of itself, sufficient to sever by mutual agreement
 But, when combined with other evidence, court was able to conclude that there
had been mutual agreement to sever, thus preventing operation of right of
survivorship when one of the co-owners died unexpectedly
 In fact, she died on the day that she was to visit the solicitor to send a written
notice of severance
 If she thought she needed to send a written notice to sever, is it still possible to
conclude that she had ALREADY severed by mutual agreement???

3. By mutual conduct
 Flexible and shifting category
 Severance may occur because JTs, by their conduct in relation to each other, have
demonstrated that JT is terminated
 Very similar to mutual agreement but here parties have not agreed to sever, formally or
informally, but have so acted
 Examples: physical partition, mutual wills and negotiations between JTs as to disposal of
property
 Matter will turn on facts of each case and whether court is prepared, as a matter of policy,
to extend circumstances in which severance is possible. Degree of hardship caused by
operation of right of survivorship might well be relevant in that calculation, as courts
favour severance if this preserves share of deceased co-owner for their fam

4. By unlawful killing
 If 1 JT unlawfully kills other, he’s unable to benefit from right of survivorship
 Rule clearly based on PP and applies equally to manslaughter – Chadwick v Collinson
(2014)