For a person to have a beneficial interest in solely owned property, they have to demonstrate that there is an express agreement to share the beneficial ownership or that an agreement can be inferred by the conduct of the parties. The person claiming the interest also has to show that they acted to their detriment or significantly altered their position in reliance on the agreement.
In the first scenario, there is often little more than the discussions between the parties to rely on. Who said what to whom and when is therefore of paramount importance. Detrimental reliance can be evidenced by paying the utility bills or undertaking home improvements for example.
In the second scenario, the person claiming an interest can show a common intention to share the property beneficially by direct contributions to the purchase price and/or by payment of mortgage instalments. Those payments also provide the necessary evidence of detriment.
Joint Name Cases
Since April 1998, purchasers of property have defined their interests in the property in the Land Registry document known as a TR1. The options are:
1. Beneficial joint tenancy;
2. Tenants in common in equal shares;
3. Tenants in common in unequal shares.
Options 2 and 3 give rise to an express declaration of trust. The parties’ beneficial ownership is determined by the terms of that declaration of trust (unless there are reasons to set-aside the declaration of trust).
Joint owners who have not declared a trust will be taken in the vast majority of cases to own the property in equal shares. That presumption is rebuttable and the leading case on this is Stack v Dowden .
If a party can get over the presumption of equal shares in joint name cases, the next question is how does the court determine the shares when they are unequal? The simple answer is by looking at all the evidence of financial contributions made by the parties.
For advice please contact a member of our dispute resolution team:
|Joe Reeves||London||020 7481 6383|
|Rosalind Webster||Bromley||020 8464 4242|
|Craig Batko||Surrey||01372 750 109|
|Jonathan Tyler||Sevenoaks||01732 446 361|