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Stack v Dowden [2005] EWCA Civ 857

Determination of respective beneficial interests of unmarried cohabitees in property registered in joint names.

Stack v Dowden [2005] EWCA Civ 857

Court of Appeal: Chadwick, Carnwath and Smith LJJ (13 July 2005)

Summary
Determination of respective beneficial interests of unmarried cohabitees in property registered in joint names.

Background
This was an appeal from an order made in proceedings under section 14 of the Trusts of Land and Appointment of Trustees Act 1996. The parties had been in a relationship since 1975 and lived together since 1983; they had four children; and the relationship ended in October 2002. The property to which the proceedings related was a house purchased in August 1993 and registered in the joint names of the parties. The transfer included the following words:

'The purchasers declare that the survivor of them is entitled to give valid receipt for capital money arising from a disposition of all or part of the property'.

The purchase price for the property was provided partly by a mortgage in joint names and partly from funds generated by the woman (from the sale of previous property of hers and from her savings).

In September 2003, the claimant had sought a declaration that the property was held by the parties on trust for themselves as tenants in common in equal shares, and an order for sale; and, in October 2004, the judge made an order in those terms.

In its judgment, the Court of Appeal considered at length the principles of equity by which the beneficial interests of unmarried couples in property registered in their joint names were to be decided. The Court considered, in particular the decision in Oxley v Hiscock [2004] EWCA Civ 546, [2005] Fam 211. Further, the Court considered the principles arising from the case of Harwood v Harwood [1991] 2FLR 274 CA where a transfer deed for the property contains a declaration by the purchasers that the survivor of them was entitled to give a valid receipt for capital money. At first instance, the judge had considered that the claimant was entitled to an equal beneficial interest in the second and third sources.

Judgment
Held, allowing the appeal, that the terms of the transfer deed were not of themselves sufficient to demonstrate a beneficial joint tenancy, following Harwood v Harwood (ibid). In the light of the transfer of the property into the parties' joint names and the circumstances of the case, there was no doubt that both parties had a beneficial interest in it (where a property is transferred into joint names the question of whether the parties each have beneficial interests in the property is unlikely to present any difficulty). There having been no express agreement about the parties' shares in the property, the court had to determine the parties' shares in accordance with the principles stated in Oxley v Hiscock (ibid). The judge was wrong to have assessed as he did the extent of the claimant's beneficial interest in the property; on the facts, it was not appropriate to treat the claimant as having any beneficial interest in the proceeds of sale of the previous property or the savings. Accordingly, the proceeds of sale of the property would be split in accordance with the declaration that the defendant had sought, namely 65% to the defendant and 35% to the claimant.

Case comment by Tacey Cronin, Albion Chambers

This s14 TOLATA claim between unmarried partners provides the perfect contrast for Miller. It reviews the principles by which the respective interests of unmarried couples in property registered in joint names are to be assessed in the light of Oxley v Hiscock [2004] EWCA Civ 546 and emphasises the strictly legal analysis to be made in such cases on the basis of findings of fact as to the parties' intentions.

Mr Stack sought an equal share in a property in which the shares had not been expressly recorded. The Judge found, and the Court of Appeal approved, that, where there was no declaration of the shares, the Court had to look at the evidence in the same way as in a claim where the property was registered in one name only. In this case, Miss Dowden had maintained her own bank accounts and gave evidence that Mr Stack had not wanted the responsibility that came with ownership. On appeal, the Judge's findings as to common intent about the ownership of a previous property and so as to contribution to the property in dispute were varied, giving Miss Dowden the benefit of the greater contribution. She limited her claim to 65%, and it is clear that she might have had more if the decision had been left to the Court: the costs argument is not reported!!

The decision goes on to consider compensation for Mr Stack's exclusion from the house - he didn't get any because Miss Dowden had to house the children - and his claim for an interest in her Building Society accounts, which also failed.