Title to land – Beneficial interest – Constructive trust – Appellant living with partner for more than 30 years – Partner purchasing family home in his sole name – Appellant making little financial contribution to household outgoings – Extent of appellant’s beneficial interest in property by reason of financial and non-financial contributions – Whether fairness requiring that property be held in equal shares – Appeal dismissed
The appellant lived with her partner for 30 years until his death in 2009. From the early 1980s, the couple lived in a property in London W4 that was registered in the partner’s sole name and was subject to a mortgage in favour of the second respondent lender. The couple had two children together, a son who was brought up by his grandmother and a younger daughter who they raised themselves.
The appellant had no significant income and, following the death of her partner, mortgage arrears accrued. The second respondent proceedings against the first respondent, as the partner’s personal representative, for the full outstanding loan sum of £449,561 and for possession of the property; the first respondent did not contest that claim but the appellant later joined the proceedings to assert that she was entitled to a beneficial interest in the property under a constructive trust.
The court made an order for possession and sale of the property but, at a further hearing, the appellant was found to have a 25% beneficial interest in the property and to be entitled to receive that proportion of the net proceeds of sale after payment of the sums owing to the second respondent. The judge found that the appellant was a vulnerable individual and that her partner was controlling and threatening. She made findings that the partner had paid the greater part of the household outgoings but that the appellant’s contributions were sufficient to justify the inference of a common intention that the appellant should have a beneficial interest in the property. She held that 25% was a fair reflection of the appellant’s contributions, both financial and non-financial, over the years.
The appellant appealed. She contended that, if no common intention could be divined as to the amount of the parties’ respective interests in the property, then the parties should be taken to have intended a fair division and that, in light of her financial contribution, the length of cohabitation and her contribution by way of bringing up the daughter, the proper finding was that she and her partner owned the property in equal shares.
Held: The appeal was dismissed.
Where it was clear that the beneficial interest in a property was to be shared between a cohabiting couple, but it was impossible divine a common intention as to the proportion that each was to own, the court should decide that issue by reference to what was fair. However, the court was not concerned with some form of redistributive justice. It was irrelevant that it might be though “fair” for a woman who had endured years of abusive conduct by her partner to be allotted a substantial interest in his property on his death. The court had to decide what was fair solely by reference to the couple’s course of dealing in relation to the property. The relevant consideration was therefore the extent of the appellant’s contribution, both financial and non-financial, in relation to the property which was the couple’s family home for many years: Jones v Kernott [2011] UKSC 53; [2012] 1 AC 776; [2011] PLSCS 264 applied.
In the case of a property purchased in the name of one party only, even with the aid of a substantial contribution from the other, there was no presumed starting point of equality of interests. The judicial evaluation of the fair share was not a matter that admitted of only one right answer. It was an exercise the outcome of which should only be disturbed by an appellate court if it fell outside the ambit of reasonable decision-making. The judge had fallen into no legal or analytical error in the instant case and there was no principled basis upon which the appellate court could regard her evaluation as falling outside the ambit of reasonable decision-making. The length of the cohabitation in the instant case did not require a different conclusion. Although, in the normal case, the non-financial contribution was likely to be proportionately greater the longer the cohabitation, it was also relevant that the judge had found that the appellant had made little contribution of a financial nature: Oxley v Hiscock [2004] EWCA Civ 546; [2004] 3 WLR 715; [2004] PLSCS 112 applied.
Richard Power (instructed by Quality Solicitors Orion, of Hounslow) appeared for the appellant; Sarah Haren (instructed by Russell-Cooke LLP) appeared for the first respondent; Sheelagh Putnam (instructed by Optima Legal) appeared for the second respondent.
Sally Dobson, barrister
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