Title to land – Tenants in common – Partition – Claimant and defendant acquiring property together with a view to each building a house on part with access by shared driveway – Defendant building house and double garage – Whether garage impeding ability of claimant to build satisfactory house – Whether property to be partitioned – Whether defendant to make equality payment reflecting difference in development value of respective parts – Claim dismissed
The claimant and the defendant were two friends who, in March 2005, purchased land together with a view to dividing it in two and each building a house on his own part, accessible by a shared driveway. They were registered as tenants in common of the land in equal shares. Each contributed half of the purchase price of £222,500 and each subsequently obtained planning permission for a house on his respective part of the property. The defendant’s house, a substantial five-bedroom property with a double garage, was completed by the end of 2008 and the defendant was able to move in. The garage was positioned on the edge of the defendant’s part of the property, adjacent to the claimant’s part. The claimant’s house was partly built but later had to be demolished owing to the negligence of his building surveyors and the incompetence of his builder.
The claimant contended that the defendant’s garage seriously impeded his ability to build a satisfactory house on his part of the land, contrary to the basis of mutual equality on which the land had been acquired. He applied to the court for an order that the property be sold and the net proceeds of sale divided equally between himself and the defendant; alternatively, for repayment of his contribution to the acquisition of the land, plus interest. He contended that no agreement had ever been reached as to the delineation of the boundary between his and the defendant’s respective parts of the property. The defendant counterclaimed for a declaration that he was already the beneficial owner of his part of the property, pursuant to a constructive trust or an equity arising by way of proprietary estoppel. He sought a declaration for a transfer of his part of the property into his sole name; alternatively, if the property were to be sold, for a division of the proceeds in proportions that reflected his contribution to the present value of the property by the addition of the house and double garage.
The parties later agreed that appropriate relief might be granted by means of an order directing partition of the land pursuant to section 14 of the Trustees of Land and Appointment of Trustees Act 1996.
Held: Partition was ordered accordingly.
(1) Where the parties were already co-owners of land, which they had intended at the outset should eventually be divided between them, then partition was the direct and natural means of achieving that objective, with recourse to the court if the beneficiaries would not all consent. On partition, section 15 of the 1996 Act required the court to have regard to the intentions of the persons who created the trust and to the purposes for which the trust property was held; more generally, the court would seek to do justice between the parties: Murphy v Gooch [2007] EWCA Civ 603 applied.
On the evidence, the common intention of the claimant and the defendant, at the time when they acquired the property, was that there would be an equal division of the whole property by area, with the precise delineation of the boundary being a matter or calculation rather than subsequent agreement. The property had not been acquired for long-term co-ownership or for development and resale, but for division into two homes, one for each of the parties. The defendant had achieved that objective on the ground, save for obtaining sole ownership of his part of the property. The claimant’s failure to make any progress towards the objective, apart from obtaining planning permission, could not be blamed on the defendant but flowed from the failings of his builder and surveyor. The completion of his house was not inhibited, still less rendered impossible, by the siting or size of the defendant’s garage or by the then position of the common boundary.
It was therefore appropriate to order partition of the two parts of the property, with the boundary between the partitioned plots remaining where it now lay, in a straight line extending in each direction from the line of the defendant’s garage. There was no evidence that, leaving aside the driveway, the claimant’s plot was any smaller than that of the defendant. The driveway should become an additional part of the claimant’s plot, subject to rights of way and to maintain services to the defendant’s plot, as well as a right of access for the purposes of maintaining the adjacent house structure, boundary gates and walls. There should also be shared obligations to maintain the driveway.
(2) It was not appropriate to order the defendant to pay equality money to the claimant to neutralise the large difference in site value between the two plots. It was not part of the original bargain that the parties’ two houses should themselves be of equal value or that the properties should have and preserve an equal development value. The arrangement was to divide the property into plots that were equal in overall area rather than value. Each party took the risk that his chosen plot might turn out to be worth less in terms of development value than the other. The minimum requirement was that each plot should be of sufficient size to accommodate a “nice house”, not that there should be two houses of equal size, shape, cost or value.
(3) Each co-venturer was under an obligation not, without the other’s prior consent, to take steps on their own plot that significantly adversely impacted on the achievement of the “nice house” objective on the other plot, or to insist on a boundary that left the other plot smaller in size. Although the defendant had breached those obligations in certain respects, those breaches had been remedied and most had caused no diminution in the value of the claimant’s plot. So far as the value of the claimant’s plot was affected value by the positioning of the defendant’s garage, it would be unjust to award compensation since the claimant had acquiesced in that breach by failing to make any complaint for two years, from when he first learned of the positioning until the defendant had started spending money on the construction of the garage. Accordingly, the partition should proceed without payment of any kind.
Jonathan Rodger (instructed by Stockdale & Reid Ltd, of North Shields) appeared for the claimant; Hari Menon (instructed by Housemans Solicitors, of Newcastle upon Tyne) appeared for the defendant.
Sally Dobson, barrister