# Topic 4 – Co-ownership and Trusts of Land
This document provides a guide to five key cases in the law of co-ownership and trusts of land. For each case, it outlines the basic facts (story), the main legal rule established (principle), and how the case can be used in both academic essays and in answering problem questions. This is intended as a foundational overview for understanding how these authorities operate within this area of property law.
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Goodman v Gallant [1985] EWCA 15
Story
A cohabiting couple, Mrs Goodman and Mr Gallant, purchased a home together. The conveyance document that transferred the legal title to them contained an express clause stating that they were to hold the property as beneficial joint tenants. The relationship later broke down. Mrs Goodman claimed that she was entitled to a 75% share in the property, rather than the 50% share an equal joint tenant would receive, on the basis that she had contributed more to the purchase price.
Principle
The Court of Appeal held that where there is an express declaration of trust that states how the equitable (or beneficial) interest in a property is to be held, that declaration is conclusive. This means that the court will not look at the parties’ contributions or try to infer a different intention. The only way to challenge a valid express declaration is on grounds such as fraud or mistake.
Application in Essay Writing
In an essay, Goodman v Gallant is the foundational authority for the principle of certainty in co-ownership. It can be used to introduce the distinction between situations where there is an express trust and those where there is not. An essay could contrast the certainty provided by the rule in Goodman with the uncertainty and litigation that can arise in cases like Stack v Dowden and Jones v Kernott, where courts must infer or impute intention. It highlights the importance of clear legal advice and proper conveyancing to avoid future disputes.
Application in a Problem Question
This is the first legal principle to apply in any co-ownership problem. When presented with a scenario about co-owners disputing their shares, the first step is to check the facts for any mention of an express declaration in the transfer document (e.g., a TR1 form). If there is a clear declaration that they are “joint tenants” or hold the property in specified shares (e.g., “60/40 as tenants in common”), you should cite Goodman v Gallant as authority for the fact that this declaration is binding, regardless of who paid for what. This means you do not need to analyse contributions or the “whole course of conduct”.
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Stack v Dowden [2007] UKHL 17
Story
Ms Dowden and Mr Stack were an unmarried couple who had been together for nearly 20 years and had four children. They purchased a house in their joint names, but the transfer document did not contain an express declaration of their beneficial interests. Throughout their relationship, they maintained separate bank accounts and financial affairs. Ms Dowden made a significantly larger financial contribution to the purchase of the property. When they separated, the question was whether the property should be split 50/50 or in unequal shares.
Principle
The House of Lords established that in cases where a property is purchased in joint names for a domestic purpose but there is no express declaration of trust, the starting presumption is that equity follows the law. This means the parties are presumed to be beneficial joint tenants (holding 50/50). However, this presumption can be rebutted by evidence showing that the parties had a different common intention. To determine this intention, courts should look at the “whole course of conduct” of the parties. Baroness Hale provided a non-exhaustive list of factors to consider, including financial contributions, how finances were arranged, and the nature of the relationship.
Application in Essay Writing
Stack v Dowden is a landmark case that shifted the law away from a narrow, money-focused resulting trust approach to a more holistic constructive trust analysis for family homes. An essay can discuss this shift, exploring whether the “whole course of conduct” approach achieves greater fairness by reflecting the reality of modern relationships, or whether it creates too much uncertainty for co-owners and lenders. The judgment of Lord Neuberger, who dissented in part and preferred a resulting trust analysis, provides a useful counter-argument.
Application in a Problem Question
If a problem question features a property in joint names with no express declaration, you must apply the principles from Stack v Dowden. Start by stating the presumption of a 50/50 beneficial joint tenancy. Then, examine the facts for evidence to rebut this presumption. You should systematically go through the factors from Baroness Hale’s judgment that are relevant to the scenario (e.g., did they have separate bank accounts? Who paid the bills? Was one party’s contribution much larger?). This will allow you to build an argument as to whether the parties intended to hold the property in equal or unequal shares.
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Jones v Kernott [2011] UKSC 53
Story
An unmarried couple, Ms Jones and Mr Kernott, bought a home in joint names without an express declaration of trust. They shared the costs until Mr Kernott moved out. After he left, Ms Jones remained in the property with their children, paying all the mortgage instalments and household expenses by herself for over 14 years. Mr Kernott made no further contributions. The dispute was over his share of the property upon its sale.
Principle
The Supreme Court clarified and developed the principles from Stack v Dowden. It confirmed that for joint names cases, the starting point is a 50/50 presumption. However, the court held that the parties’ common intention could change over time. If a common intention to vary the shares cannot be inferred from the parties’ conduct, the court can *impute* an intention. This means the court will determine what is fair having regard to the whole course of dealing between them. In this case, the court imputed an intention that Ms Jones’ share had increased over the years, awarding her 90% of the value.
Application in Essay Writing
Jones v Kernott is primarily used in essays to discuss the concept of “ambulatory” or changing common intention and, most importantly, the court’s power to *impute* intention. This is a point of academic debate. Some argue that imputation is a necessary tool to achieve fairness where it is impossible to find a real (inferred) intention. Others argue that it is an example of “palm tree justice,” where judges are essentially creating a property right based on their own view of fairness, which undermines legal certainty.
Application in a Problem Question
Use Jones v Kernott in a joint names problem where the parties’ circumstances have changed significantly after the initial purchase (e.g., one partner moves out and stops contributing for a long time). You would first apply Stack to establish the starting presumption. Then, you can use Jones to argue that the parties’ common intention changed at the point of separation. If the facts do not allow you to infer a specific new percentage share, you can argue that the court should impute a “fair” division based on the subsequent contributions, as was done in Jones.
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Burgess v Rawnsley [1975] Ch 429
Story
Mr Honick and Mrs Rawnsley, an elderly couple, bought a house together as beneficial joint tenants. Their original intention was to live in separate parts of the house, but their relationship soured. They entered into an oral agreement for Mr Honick to buy Mrs Rawnsley’s share for £750. However, she later changed her mind and asked for a higher price. Mr Honick died before any formal agreement was completed. His daughter argued that the oral agreement had severed the joint tenancy, meaning his half-share passed to his estate. Mrs Rawnsley argued that severance had not occurred, so she became the sole owner through survivorship.
Principle
The Court of Appeal held that a joint tenancy can be severed by a course of dealing which shows that the interests of all were mutually treated as constituting a tenancy in common. An informal, oral agreement to sell a share, even if not legally enforceable as a contract, was held to be sufficient to demonstrate a common intention to sever the joint tenancy. Lord Denning MR suggested an even broader test: severance occurs if the parties’ conduct shows they no longer intend to be joint tenants.
Application in Essay Writing
Burgess v Rawnsley is a key case for discussing the methods of severance, particularly severance by mutual agreement or a “course of dealing” (two of the methods from Williams v Hensman (1861)). An essay can explore the flexibility and potential uncertainty of these methods. Lord Denning’s liberal approach can be analysed as a pragmatic way to give effect to the parties’ intentions, but also as a source of legal ambiguity, as it is not always clear what “course of dealing” is sufficient to sever.
Application in a Problem Question
In a problem question where co-owners are beneficial joint tenants and one of them dies, the central issue is often whether the joint tenancy was severed before death. If the facts mention that the parties were negotiating to buy each other out, had an “agreement in principle”, or acted in a way that showed they treated their interests as separate shares, you should apply Burgess v Rawnsley. It is the authority for arguing that even an unenforceable agreement or a pattern of behaviour can be enough to effect severance, thereby preventing the right of survivorship from operating.
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Bank of Ireland Home Mortgages v Bell [2001] FLR 809
Story
A husband and wife were joint legal owners of their matrimonial home. The husband secured a mortgage on the property by forging his wife’s signature. The couple separated, and the husband stopped making mortgage repayments. The bank, as a secured creditor, applied to the court for an order for sale under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). At the time of the hearing, the wife, who had a small (10%) beneficial interest, was living in the property with one of their children. The debt to the bank had grown to over £300,000.
Principle
The Court of Appeal, in considering the application for an order for sale, had to balance the factors set out in section 15 of TOLATA. These include the welfare of any minors and the interests of the secured creditor. The court held that the interests of the creditor are a “powerful consideration”. While a sale might be postponed in exceptional circumstances, a creditor should not be kept out of their money for an extended period, particularly when the debt is large and increasing. The sale was ordered.
Application in Essay Writing
This case is a leading example of how courts apply sections 14 and 15 of TOLATA in disputes between a co-owner and a creditor. An essay could use Bell to argue that despite the broader discretion given to courts by TOLATA, the outcome in creditor cases is often similar to the old law, with the creditor’s commercial interests usually prevailing over the family’s interest in retaining their home. It highlights the tension between protecting the family home and upholding the rights of lenders, which is a central policy issue in land law.
Application in a Problem Question
When a problem question involves a bank or other creditor seeking to force the sale of a family home, Bank of Ireland v Bell is a vital case. The first step is to list the factors in s.15 TOLATA that the court must consider. You should then use Bell as authority for the argument that the creditor’s interest is a very significant factor. You would analyse the facts to see if there are any “exceptional circumstances” (like a child with a serious illness needing to stay in a specially adapted home) that might justify postponing the sale. If not, the likely outcome, following Bell, is that an order for sale will be granted.
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References
- Bank of Ireland Home Mortgages v Bell [2001] 2 FLR 809.
- Burgess v Rawnsley [1975] Ch 429.
- Goodman v Gallant [1986] Fam 106.
- Jones v Kernott [2011] UKSC 53.
- Stack v Dowden [2007] UKHL 17.
- Trusts of Land and Appointment of Trustees Act 1996.
- Williams v Hensman (1861) 1 J&H 546.
