Joint ownership of property — Agreement and declaration of trust setting out parties’ liabilities and entitlements — Whether appellant entitled to greater share of proceeds of sale on basis of deceased partner’s failure to meet household costs equally — Whether waiver of appellant’s right to reimbursement — Appeal dismissed
The respondent was the mother and administratrix of the deceased, who had died intestate, leaving the respondent as sole beneficiary of her estate. The appellant was the deceased’s partner, and the couple had, until her death, lived in a registered freehold property purchased in their joint names. Clause 4 of a 1985 agreement and declaration of trust provided, in clause 4, that the couple should “bear equally costs expenses and outgoings payable in respect of the property”, including mortgage repayments, insurance premiums, repairs and decorating. However, most payments relating to the property were defrayed from a joint account funded solely by the appellant. Clause 5 of the agreement provided that the net proceeds of sale of the property were to be divided between the appellant and the deceased in the proportions of 80% and 20% respectively.
Upon the death of the deceased, the appellant brought proceedings in which he claimed to be entitled to the whole of the proceeds of sale, or, alternatively, to an account under clause 4 of the agreement. The judge held that clauses 4 and 5 were independent of each other, so that the deceased’s share of the net proceeds of sale was not to be reduced by the amount of any sums for which she might once have been liable under clause 4. He further held that the appellant had impliedly waived any right to reimbursement under that clause. On appeal, the appellant contended that none of the requirements for waiver – representation, reliance and inequity had been established.
Held: The appeal was dismissed.
The agreement was not a commercial agreement between strangers. The judge, having heard the evidence, was of the opinion that the appellant had made it clear to the deceased that he would not enforce any right to reimbursement against her, and she had ordered her affairs accordingly. With regard to parties living happily together, that was sufficient to establish waiver. It was not appropriate to insist on the formalities of waiver in its application to an informal relationship.
Simon Monty QC and Graham Chapman (instructed by Bryant Hamilton & Co) appeared for the appellant; Peter Crampin QC and Kevin Sparks (instructed by Baily Bryant & Dumbleton, of St Leonards-on-Sea) appeared for the respondent.
Sally Dobson, barrister
