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Holman v Howes [2005] EWHC 2824 (Ch)

Where the common intention, at the time of acquisition of a property, was that a beneficial owner of a property was to remain in the property for as long she wished then that could prevent an immediate sale against another beneficial owner’s wishes.

Holman v Howes [2005] EWHC 2824 (Ch)

Chancery Division: Mr Alan Steinfeld QC (sitting as a Deputy Judge) (11 November 2005)

Summary
Where the common intention, at the time of acquisition of a property, was that a beneficial owner of a property was to remain in the property for as long she wished then that could prevent an immediate sale against another beneficial owner's wishes.

Background
The claimant was seeking to be recognised as the sole beneficial owner of a property while the defendant counterclaimed for an order for sale under s14 of the Trusts of Land and Appointment of Trustees Act 1996. It was held that the property was purchased as a joint and equal venture but the order for sale was postponed in the light of the evidence of the common intention at the time of acquisition.

The property was purchased in 1979 by a couple who had already divorced. The former husband persuaded the former wife to put in funds to buy the house so they could move back together as a family with their daughter. When the husband first suggested the idea he said that she would be the sole name on the transfer but, on advice from his father, he was named on the transfer as the sole owner before the purchase was completed. The claimant asserted that he had assured her that this was a mere technicality and that he would not seek to lay claim to the property if the relationship were to break down again in the future.

Following Oxley the judge asserted that if he could find that there was a common intention that the claimant should be the sole beneficial owner of the property then he should give effect to that intention.

Judgment
Reviewing the written and oral evidence, the judge concluded that there had been no common intention that the claimant was to be sole beneficial owner of the property. In particular there had been several instances over the intervening period when she could have asserted her claim to be sole beneficial owner. For example in solicitor's attendance notes regarding a possible sale of the property in 1983 the claimant had blocked a sale unless guarantees were in place about her share of the proceeds and this was inconsistent with her claim now. Accordingly the judge concluded that the defendant and claimant were joint beneficial, equal owners.

However he also found that the defendant had led the claimant to believe that she would not be forced to leave the house against her will. Reviewing the circumstances in which he could make an order for sale under s 15 of TOLATA, and the evidence before him, he directed that the property should not be sold for the time being but allowed for further applications if new evidence could be brought to the court.

Read the full text of the judgment here