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Barracks v Barracks and Another [2005] EWHC 3077 (Ch)

Claim that beneficial interest in property was held as tenants in common upheld.

Barracks v Barracks and Another [2005] EWHC 3077 (Ch)

Chancery Division: Laddie J (26 April 2005)

Claim that beneficial interest in property was held as tenants in common upheld.

This case involved a dispute between the claimant and his father, the first defendant, over the beneficial ownership of a residential property.

The property was purchased in 1986 by the first defendant and his mother. In the early 1990s, the first defendant wanted to set up and operate a care home in partnership with the second defendant. For the purpose of raising funds, the property was mortgaged and the legal estate was vested in the first and second defendants. The first defendant used the funds realised by the mortgage to acquire a further property which was used as a care home. In the mid-1990s, the partnership between the first and second defendants was brought to an end; litigation concerning the ownership of both properties ensued between them; and the first defendant's mother was joined as a third party and she made claims of her own in those proceedings. In 2000, those proceedings were largely resolved.

The first defendant's mother died in 2002, and in her will she appointed the claimant as her sole executor and beneficiary of her estate; the claimant brought these proceedings to recover his grandmother's interest in the property, contending that the beneficial interest in it was held by his grandmother and father as tenants in common, with each being entitled to a 50 per cent share. The first defendant disputed this, saying that the beneficial interest was held as a joint tenancy and that, as a result, it all passed to him on the death of his mother. He relied on the wording in the 1986 transfer deed, to the effect that the survivor could 'give a valid receipt for capital money arising on a disposition of the land', as indicating that a joint tenancy was created.

The judge also heard submissions on behalf of the claimant that, even if there had been a joint tenancy as at 1986, an analysis of each of the key events since that date confirmed that a tenancy in common had been created.

Held, upholding the claim, that there was nothing to suggest that the first defendant or his mother ever turned their minds to creating a joint tenancy in respect of the beneficial interest in the property, let alone determined to make a declaration of trust to that effect. Huntingford v Hobbs [1993] 1 FLR 736 made it clear that it was impossible to imply a declaration of trust into the words contained in the detailed standard form transfer document.

It followed that, as of 1986, the first defendant and his mother held the beneficial interest in the property as tenants in common; and it was not suggested that anything was done subsequent to that date which would have created a joint tenancy.

Read the full text of the judgment here