Introduction: 65/35 defendant-claimant; claimant appealed on this decision




& Dowden case (2007)1,
Dowden (defendant) and her partner (Stack-claimant) jointly purchased property,
with a contribution of 65% of purchase price coming from D’s saving, and 35%
coming from a mortgage advancement – later paid off by the claimant. No
statement of intention whether the property was to be held as joint tenants2
or on trust as tenants in common was made.

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19 years, D and her partner split with four children, the claimant had left his
partner and the four children living in the house applied for an order for sale
of the property with an equal share of the beneficial interest from the
property (50-50)3


of Appeal allowed an appeal to split the proceeds 65/35 defendant-claimant;
claimant appealed on this decision following sharing of beneficial interest among
unmarried couple after the cohabiting relationship had broken down. There is a
presumption that a property held in joint names will be held as joint tenants
with equal beneficial interest, based on the fact that the tenants operate
separate account, held the house in proportion to purchase contribution the
presumption may be refuted.


tradition in English law has its notable distinction between legal ownership in
land and its beneficial ownership. The trusts under which the land is held will
determine the extent of each party’s beneficial ownership.


claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)
commonly privileged under s.14 of the Act asserting the nature and extent of a
person’s interest in property subject to a trust of land (under section
14(2)(b)) and/or for an order for sale of the property (under section
14(2)(a)).  In order for any party to
bring a claim, it must establish from its origin that they either are a trustee
of land or have an interest in the property subject to a trust of land.


a property is in joint name, is known as Joint Tenancy means that the property
is held by a joint owners together and not in shares. Legally, there can only
be four joint tenants at once, the first four names on the list becomes the
joint tenants, and the names of which must be registered (s.34 Law of Property
Act; LPA 1925).   In case of death of one of the owners, the property
as a whole belongs to the remaining joint tenant/s as listed on the deed.  Right of Survivorship is not allowed, as the
property cannot be disposed in a will. 


in the case of only two legal tenants on the deed and both died at the same
time, it is presumed that the older one dies first (s.184 LPA 1925).  With no right to survivorship, unity of
possession is required for the separate interests to be disposed freely. 


beneficial interest/ownership is said to be held under a joint tenancy this is
legally binding.  In addition it becomes
an essential tools in future in case of dispute that may arise between parties
in share of beneficial interest, the tool will reflect the intention of each
party from the point of initial purchase of the property statement seen in
Bedson v Bedson;4
Goodman v Gallant.5


1987 in his argument calls for abolition of equitable joint tenancies as
little it serves.  He drew upon one set
back this could cause in tenants in common if one tenant dies, appointee of a
second trustee will be required for the sale of the property.  It is conclusively presumed that survivor
will take under the will of deceased thereby ceasing ownership.  Little of advantage would be lost if joint
tenancies were confined to ownership of the legal estate. Another crucial point
added to this is the, interpretation of the Forfeiture Act 1982, this would be precluded
and, finally, each party would be encouraged to agree from onset the
distribution of shares in case of a sale.


may prove in three way with single legal owner by expressed trust, resulting
trust and constructive trust all known as implied trust; Jones v Kernott .


acquisition, there are three types of trust: express, resulting and constructive
– the three method are differ in their creation and their intention.


trust actual intention is subject to compliance with formality requirements in
s.53(1)(b) of LPA 1925. If the parties specific shares is express too, this is conclusive,
if not, then constructive/resulting principles are applied. Oral
agreements/promises binding for constructive/

trusts – s.53(2) LPA 1925 Eves v Eves6.


trust most common resulting trust is purchase money trust an example when one
person contributes to property in another person’s name, trust arises since it
is assumed that the person did not intend to gift the money. Each party
receives a share proportionate to their share of the purchase money.  Scope of purchase money resulting trust also applies
where the parties purchase the land in their joint names and there is no
express declaration of trust regarding the parties’ respective shares. The resulting
trust then determines their shares based on their financial contributions.  Practical difference between
resulting/constructive trusts relates to the quantification of their respective
shares. Resulting trust usually used in commercial context, Stack v Dowden7
removed the application of the resulting trust where the property in question
is a home.



trusts this is the widest and least clear category of trust; Paragon Finance v DB Thakerar & Co8
suggest it arises “whenever the circumstances are such that it would

unconscionable for the owner of the property to assert their own beneficial
interest in the property and deny the beneficial interest of another Institutional
constructive trust arises by operation of law as from date of the circumstances
under which it arises.  Remedial
constructive trust judicial remedy giving rise to an enforceable equitable
obligation and the extent to which it applies retrospectively, is up to the


legal owner, Jones v Kernott9
case diminished the role of the resulting trust.  Lord Walker suggesting the constructive trust
should be applied in the case of a single legal owner, then it is a common
intention constructive trust focus is on the parties’ conduct, which included,
as seen in Gissing v Gissing10
and Stack v Dowden11
on day-to-day expenses such as household bills; indirect contributions. Any
indication that the parties’ wished to share the home; this would be inferred
as common intention. There is no resumption of equal shares in sole name cases.


legal owner Conveyance to joint owners is conclusive to the existence of a
trust. Equity follows the law therefore joint tenants are also joint beneficial
interest holders with the starting point at 50:50, as held in Stack v Dowden.
The presumption is that with evidence, common intention can be rebutted


stand before in coownership in co-habiting. 
In Oxley & Hiscock12,
it was held that the judge had taken wrong turning in presiding in the
case.  The law in the area were not very
clear and the judges had taken wrong approach based on outdated and artificial decision.  Parties conduct were used to infer intention
at the time the property was purchased.  Whereas
in the instant case, there were some evidence that the parties had intended
some form of shared ownership but had not agreed in what proportion to be
distributed.  They were each entitled to
the share which the court considers as fair. 


allowing the appeal in part, that the judge had taken the wrong approach and a
fair division of the proceeds was 60 per cent to H and 40 per cent to O. The
authorities in this area of law were to some extent unclear, and the judge had
based her decision on a somewhat outdated and “artificial” approach
in which the conduct of the parties throughout the relationship was used to
piece together an inferred intention at the time the property was purchased.
Where, as in the instant case, there was some evidence that the parties had
intended some form of shared ownership but had not discussed in what proportion
those shares should be, Yaxley v Gotts13.  They were each entitled to that share which
the court considers fair having regard to the whole course of dealing between
them in relation to the property”.


judge had wrongly dwelt on conduct going towards intention instead of stepping
back and looking at it from the point of view of overall fairness. Although O
and H’s cohabitation had involved a “classic pooling of resources”,
H’s greater financial contribution had to be taken into account and an equal
split would therefore not be fairer quantification of the beneficial interest.




& Dowden case look into common intention constructive trust arise.  Lord Walker dismissed the appeal.  Looking at when a common intention
constructive trust, by contrast, is identifying the true beneficial owner/s and
the proportion of their beneficial interests. 
Proprietary estoppel naturally consists of stressing an equitable claim
against the integrity of the true owner. The claim is a “mere equity” hence
proprietary estoppel and common interest constructive trust should not be
adapted as this is gratified by the minimum award necessary to do justice which
may not benefit than the monetary terms. 
Similarly the difference between resulting and constructive trust focus
on certain conduct that lead to presumed intention of the party who in its
effects holds the shares in proportion to purchase price contributed and
constructive emphasis is on intention whether this is actual or imputed.  As resulting trust is commonly used in commercial
interest this should be avoided in family context and should not be considered
as legally. 


Bridge in Rosset14
case only considered direct financial contributions as relevant and whether
common intention could be inferred in absence of express agreement.   As the law has moved on, Baroness Hale ascend
in the same direction that when a property is on a sole owner, the burden lies
on the the person seeking to show that the beneficial ownership is different
from the legal ownership.  To overturn
the burden, all conduct in relation to the property is considered not only direct
contribution of finance as context to be considered as stated in law and family
factors such the rationale behind the joint names, purpose for acquiring the
home is beyond financial contribution and will state the financial contribution


Lord Neuberger also dismiss the appeal whether whether an intention is inferred
or expressed it should not be imputed  •         While an intention may be inferred as
well as expressed, it should not be imputed. 
An inferred agreement is one which is objectively deduced to be the
actual subjective intentions of the parties from their actions and statements.  An imputed agreement is one which is
attributed to the parties even though no such actual intention can be deduced
from their conduct.   LJ Hopkins: Maj by-pass
the above notion by taking broad approach looking at the  effect of majority approach is that whether
common intention is found depends on considering the acts of the parties and
the context that the actions took place in.


developments is not satisfactory to take a strictly chronological overview of
the cases.  This is because there have
been two important House of Lords decisions dealing with proprietary estoppel,
one of which considered the doctrine in a commercial context Cobbe v Yeoman’s
Row Ltd15
and one that looked at the doctrine in a more “domestic” context Thorner
v Majors16.  In grappling with the applicability of
doctrines of proprietary estoppel, therefore, the practitioner should first
look to these two cases and, of the two, should concentrate primarily on
Thorner v Majors.17


application of Stack & Dowden in subsequent cases, Holman v Howes18
was the earliest application of case of Stack by the Court of Appeal.  Citing the speech of Baroness Hale Lloyd LJ
stated at paragraph 30 that the Court’s inquiry should be directed to what
was intended between the parties or, if that cannot be identified directly,
what they must be taken from their conduct to have intended.  “It is not for that which the court
considers fair.”   This was a case
where attempts were made to rely on “post-acquisition” matters as
part of the whole course of dealings in relation to a property as indicating
the necessary common intention to share ownership.   The legal owner of the property, a man, had
left the property in 1980 and the woman had then been solely responsible for
its upkeep and did not pursue claims for maintenance in respect of the parties’
daughter.   The Court of Appeal declined
to take these matters into account (at paragraph 32):

value in Stack v Dowden case seems to be irrelevant in the above and to
consider what the court considers as fair in the case is like going back to the
original of where the court previously considered inference and not imputation
is like a flaw in the case. 

1 Stack
v Dowden 2007 2 AC 432

2 Definition
– each owns the whole rather than any form of share in it: Roger Smith,
Property Law, Longman Law Series, (6th edt.)

3 Goodman
v Gallant 1986 Fam 106

4 Bedson
v Bedson 1965 2 QB 666

5 Goodman
v Gallant 1986 Fam 106

6 Eves
& Eves1975 1 W.L.R. 1338; 1975 3 All E.R. 768; (1975) 119 S.J. 394

7 Stack
& Dowden 2007 UKHL 17; 2007 2 A.C. 432

8 Paragon
Finance Plc v DB Thakerar & Co 1999 1 All E.R. 400 (21 July 1998)

9 Jones
v Kernott 2009 EWHC 1713

10 Gissing
v Gissing 1971 AC 886

11 Full reference on previous footnote

12 Oxley
v Hiscock 2004 EWCA Civ 546

13 Yaxley
v Gotts 2000 Ch. 162; 1999 3 W.L.R. 1217

14 Lloyds
Bank Plc v Rosset 1989 Ch. 350; Guardian, June 9, 1988 (CA)

15 context
Cobbe v Yeoman’s Row Ltd 2008 1 WLR 1752)

16 Thorner
v Majors 2009 2 FLR 405)

17 Thorner
v Major 2009 UKHL 18

18 Holman
v Howes 2007 EWCA Civ 877



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