username

password

Established
Family Law WeekAlphabiolabsHousing Law WeekFamily Law WeekBerkeley Lifford Hall Accountancy Services

Crossley v Crossley [2005] EWCA Civ 1581

Finding of beneficial joint tenancy upheld.

Crossley v Crossley [2005] EWCA Civ 1581

Court of Appeal: May and Peter Gibson LJJ (21 December 2005)

Summary
Finding of beneficial joint tenancy upheld.

Background
The mother, the father (who died in 1997) and their son bought their council house in 1988. The property was transferred to all three of them, but no declaration was made as to their respective beneficial interests. In 2005, the mother sought a declaration under the Trusts of Land and Appointment of Trustees Act 1996 that she was the sole beneficial owner, and her son resisted the claim.

The judge, in determining whether the son had any beneficial interest in the property and, if so, the nature and extent of that interest, identified two primary areas of factual dispute: (1) the intentions of the three transferees at the time of the purchase; and (2) what contributions the son had made to purchasing the property or servicing its mortgage.

Having considered the evidence on the first of these points, the judge concluded that there was a common communicated understanding at the time of the purchase that the son would acquire a beneficial interest. As to the second point, the judge did not determine what was the fair share to which the son was entitled, having regard to the whole course of dealing, and she specifically held that it was unnecessary to make any findings as to the parties' post-purchase contributions to the mortgage and other outgoings. Accordingly, the judge decided that the beneficial interest in the property was held in equal shares between the mother and the son.

The mother appealed against the decision, principally on the basis that the judge should have preferred her evidence to that of her son's on credibility grounds.

Judgment
Held, dismissing the appeal, that the judge's decision that there was a beneficial joint tenancy could be supported. The judge had been entitled to conclude that the parties had reached an agreement, arrangement or understanding not only that the son should have a beneficial interest but that he should take a specific beneficial interest. Where the parties had reached a consensus on the beneficial interests in the property, the court would give effect to it, unless there was very good reason for not doing so. The task of determining the fair share, having regard to the whole course of dealing in accordance with Oxley v Hiscock [2004] EWCA Civ 546, need only be performed in the absence of an agreement, arrangement or understanding as to the nature and extent of the respective beneficial interests of the parties.

Reference was made to the 1997 amendment to the Land Registration Rules 1925 by which, in the case of a transfer to joint proprietors, a compulsory declaration of trust is required by the transferees, specifying the nature and extent of their interests; while this makes the task of the court easier in cases after that date, the difficulties affecting earlier transfers, as in the present case, remain.