Hello. Welcome. Everybody might himself to my mood and very pleased to welcome you to today's by psy session through data law today, I'm going to be speaking to you about cohabitation disputes on really trying to answer the question which is Do I rely upon a trust or estoppel? Okay. And as you know, this is a very difficult area when you're advising in family and civil matters particularly cohabit ease. And therefore because we don't have the benefit off the partnership pact and we don't have the benefit of the match one, of course, is that 90 73. You're very much relying upon the common law on or Saudi property law insofar as assisting cavities in these circumstances. So what I'm going to be covering is looking at the are different cased Lord has developed over the events years in this area on bringing you up to speed with some of the more recent authority, particularly when it comes to a stop all claims one. The first things to really discuss with you is of course, there are advantages in having cohabitation contracts, and it may well be the case that this is an option that has been floated at the conveyancing state. Sometimes the benefit typical habitation contract between cohabit ease, of course, is that subject to being binding and therefore ensuring that the necessary elements off the contractor are satisfied than the benefit of this is that it will form the basis of what is to occur in the event of separation. It provides a level of intention, which is absolutely vital India's circumstances to try and ascertain what the true intention of the parties were at the point at which they were moving in together and decided to live together. It also is a framework for the break up of the relationship in the event that the party's de separate. So there's that on. But he also does. It allows one to provide for anticipated and unanticipated issues that may arise. So, for example, if a couple word to have a cohabitation contract, you may find that they stipulate within that what would happen if they were to separate in relation to what would happen to the house, for example, with a person who has the Children living with them be occupying the house where the person has been paying a mortgage When the person has paid the initial deposit acquired property, for example, so those discussions could be hard at that stage. Of course, many people do not enter into cohabitation agreements, co optation contracts and therefore often will be faced with an advising clients at the point off relationship breakdown. And this is where it's very important to bear in mind that when parties are purchasing properties, let's first take the first example whereby the parties have purchased a property jointly. So as you know, it is a choice between joint tenancy and tenants in common on, uh, if the parties of Pech departed joint tenants in law and equity, then there may come a time in the future waited. They decide his seven of joint tennis. And, of course, that's very easy to do to serve the notice off sevens, which were then converted into a tenancy in common on, Of course, it's ordinary. Ordinarily, the case that one would send send a former City V one to the land registry for perhaps a recording there, but various methods to seven a joint tenancy, the most obvious and simple way this is simply served tea notice of sevens on the other party. This is where we've got cases like stack endowed and stack and down was this 2007 has a Lord's case, as it was then, some years back on. About this particular case was one whereby an unmarried couple who decided to live together some 24 years previously they had four Children on the relationship, and the lady had spent a lot of her money from the sale of her first property to put into the second property, which was purchased together jointly between her and her partner. They were unmarried and decided to be on, not decided to get married in that time. So do these 20 odd years that they live together. The lady, throughout the period of the ownership of the property, in fact, paid a lot more towards his property than the man did, and one day, then separated. Some 24 years later, Andi property was severed. This is where the dispute er always because the man was arguing that the property should be divided equally as Purdy presumption of 50 50. But the lady tried to argue against that on the basis that she argued that given her contributions over that period of time. The intention was that it should be divided in terms of the net proceeds that sale proceeds on the basis that she should get a largest sliced and he should. This therefore was disputed and ultimately the matter did court house the laws as it was then. Ultimately, the House of Lords did finding faith of the lady. She was able to rebut that presumption of 50 50. But the court did emphasize that, of course, for future, it was very important to ensure that the transfer deeds were very clear, that you tear one was clear and disregard, and also if people wish to hold properties in unequal shares, that it was very important for them to have a declaration off trust. But under facts off this case, the lady was able to get 2/3 of the proceeds and the man got merely one said a similar decision to an extent was reached in Jones and Colonel 2011. This is a case where, by your the man in Lady Day to had purchased a property together, they were unmarried, had a couple of Children and they two lived its property together for some eight years the man and decided to move out. And he left his partner and Children interning not to return. Andi he left for left his partner, she continued, pay for everything on uh, he didn't provide any child maintenance for the Children he didn't return some 12 years later at the property was severed once again and he saw 50% off that. And in fact, the matter this time also went to the highest court in the Supreme Court. This time, United Kingdom Supreme Court. And ultimately, the court decided in favor of the lady by stating Nutty Lady was to get 90% of the proceeds on a man merely 10% there. Five Lord justices who decided three Lord justices decided that when a man decided to leave at the point did, given his intention of that stage, which was not to return, that very the beneficial interest significantly and crystallized in favor of the lady to get 90% it was Two of the Lord justices took the view that given the period that this man had been ad for so long, and given the equity would take effect here, it was only right proper and fair and constable that she should get the lion's share. So again you can see the variation off the beneficial interest in that regard. The other case of Pain Canyon Chandigarh, is a very important one because this emphasizes the benefit off declarations of trust. And therefore, if you are advising clients who do seek to hold property unequally, it's fairly important to ensure that you wiped to advise them about the benefits off on having a declaration, trust and us. Essentially, what happened here way involved, Uh uh, House, which involved a uncle, aren't and also the nephew. The on course credit rating rating was not good on the nephew decides to assist, but a property was purchased in his name on the auntie as beneficial tens in common and equal shares. And there was also declaration trust to that effect. There's only went at the young course, sadly died some years later that Deonte was claiming for the full share in the property. At that, the nephew was able to rely successfully on a declaration of trust that have been put together in the absence of fraud, a mistake that would be finding in the absence off of anything of that nature, and therefore the court gave weight and upheld a declaration. In that regard. There's in the case of Bonds and Phillips, which again involved in on my couple living together for some years on This is one word by the man re mortgaged the property to assist him with being able to take those funds to helping with these three separate investment properties that he had on when the couple separated, he got, uh, some 25% of the proceeds, and the lady got the other 75% on the basis that he had already acquired the lion's share off he share, given that he had already taken it to assisting with his his other properties. That he had a good man got on Gallant in a very important case, which emphasizes the fact that in the absence of fraud or mistake, declarations of trust when they are put together are binding. So again it's favor important, too. Pay that case in mind now. The other type situation I wanted to cover is so far would be looking at a situation where the property is held in a Sony off one party. But what if the property is held, and so it would be looked a situation of properties. How did joint names, I should say? But what's the position of the property now is held in a sole name of one party. What if somebody then seeks trust or by whether constructed trust or perhaps through a stop? How do we do that? And this is what a case of Lloyds Bank of Ross it is. A very important case is a case of 1990. But it's one whereby in this particular case, Lord Bridges in that case emphasized that when you have indirect contributions which are made towards the acquisition of the pressure price, then they could well be constructive trust on days. The actual constructive trust, the name for constructive trust. Often it will be a situation whereby there is a common intention between the parties that are no, no, no non owner is to have a shared a property by were for beneficial interest. And then that person relies upon that and subsequently then suffers a detriment. And it is where there's been cases since then, such as Cox and Jones, for example, involving two lawyers were by the concept off a stop always utilize their and just like the case of Stack and Doubt and unmentioned in 2007 all sorts in the case of oxygen hiss cock what these cases emphasizes that the court would do what's going a survey of the whole course of dealings in looking to see what contributions were made, what the person thought, why they paid what they did to assist the court and exciting first and foremost, whether or not they should get relief. On second, we want the respective beneficial interest should be that our date should be entitled to so again oxygen here, Scott and stacking Dad. In a very important cases which have looked at that, there's also another former relief which is sometimes claimed, does as an alternative or alongside a constructive trust on that is the concept off proprietary estoppel. And this is where the case of Massari when Masato comes into play because this emphasized a benefit off such an action, Massari was one whereby the court emphasized that to successfully claim a stop, all one has to showed up. That person was mistaken us today. Legal rights. They must have believed that they had an interest in a property which they did not on. The other person must have encouraged them and to expend monies under property. And that encouragement could be very subtle. Window waits Donica Leave a directive Corbyn directed in the manner in which it's done and this is where cases like Kill It in gold hold are very important. This case in the year 2000 we're buying that particular case involved a farmland on the farmhouse whereby a particular farmer was then a defendant to inaction by the claimant who had started working on the farm land ever since he was a young boy from the age of some 13 years of age Aunt, he claimed that he had been promised by the farmer to be given a farmhouse on also so tune aspects of the farmland wanted to be told after some 43 years working on the fund language, very would very little pay. He was being told that he would get nothing. So that's where he was able to successfully claim a stop work to say that he was misled. He relied upon what he had been promised when he had been offered on based upon my he had suffered a detriment in that regard and therefore he was successful in getting the farmhouse and also on a manned by the lump. So many region of £100,000. Now this is where there's been a lot of more recent case. Lord has looked at the notion off estoppel on this case of Davison Another, for example, involved on action which was brought by a daughter against her parents in relation to farmhouse. And again the court famous looked at the concept of a stop or on also constructed trust and looked at the concept off representation that were made and looking at the detriment. And I'm looking at the relief in that regard. Sometimes you may find as this case of read Ian Robson on emphasized that the court may well give effect to an agreement reached. Even lower parties did not commit it to a court order, a za longest. There was an agreement reached between the parties, so essentially oil agreements may stand many years later. In this case of really in. Robson illustrates that whereby the couple had agreed to a situation whereby lady was to get some 20% of the proceeds of the house on the mandamus to get the other some 80% on, even though disagreement was agreed between lawyers. But it wasn't ever embodied in a consent order before a court. The court was prepared to give way to defect to it and that it had the hallmarks off Section two, subsection one off the Lower Property Miscellaneous Provisions Act of 1989 on the court. Satisfied that agreement had been committed to in writing and necessary formalities with that in mind, had in fact been complied with. So they found not basis. The court did give effect to it. Then there's this other case of poor Davison on others, This case off 2000 on 17 this one and at this particular cases, one which really looks specifically at the position with bankruptcy and also looks at a position with actual accounting and also the concept off occupation rent. It's a case where, by the couple were married, they had become estranged on lived apart. Onda wife had purchased the property, which was in her soul name, but it was a declaration of trust, but by it would be held by both her and her husband in equal shares that a wife got into financial difficulties and couldn't continue to pay the mortgage, which led to the husband and assisting in re mortgaging. But that was on the basis that to build a society required to profitable, to be put in joint names like said, there was a declaration of trust already in place, giving him the 50% of the proceeds. So the mortgage was continue to be paid entirely by the wife, and some years later the husband became bankrupt. And this is where the trustee in bankruptcy then went against the husband's harsher of the property, not a wife argue that trust each should not stand on the basis that husband had not been paid a mortgage. But the court took the view that the declaration would stand refer specifically to court the case of Stack in Doubt and on the court said that, But this was a declaration that had been signed by both of my wife, fully understood implications of it. There wasn't any evidence off Ford a mistake in that regard and therefore Dwight would be banned by the declaration. The wife then argued that she sought to rely upon tractable accounting to argue that essentially, she said that by continue to pay the mortgage, it was such that this that enabled the property to be maintained in that regard. Onder. Therefore, she should be given credit for monies paid on expenditure incurred on this, joining on property in the circumstances. Given that she was paying for this entirely and the husband was not so, she relied upon this and the fact that interest payments were made. She argued successfully that that shouldn't negate the fact that the court should allow electable accounting to be used. Not a husband through the trustee, argued the concept off, uh, occupation rent. The argument that was advanced was that the occupation rent pigs but should be employed because for substantial period of time, the property was now occupied by the husband and therefore, that should then actually bounce out the argument that the wife was running insofar selectable accounting. Now the face of it, the core was going to be permit, allowing the argument to stand for the difficulty here. Which trustee found was that because the husband had not occupied a property and indeed had not intended to occupy the property was very difficult to argue that are the occupation, went arguments. You stand in the circumstances again. You can see how latinum came into play out the circumstances of that case, not just the recent cases than also which have looked at a concept off a stop or in particular in this case of habit, field and habit field or 2018 was one whereby the claimant was one of four Children of the defendant in the late husband on the case itself. Related or farm, which was held by the defendants. The acreage was some tunes on 20 acres on day was worth into each of about 2.5 £1,000,000 not a claim. It was a water, and she claimed to be untouched a whole, far more or less a share of it as a court soffit on her claims based on proprietress stop or alternatively, she brought an action under the inheritors provisioned for Family Dependence Act 1925 against her late husband. She claimed that she had devoted her working life too far because of Father had reassured her that eventually she would take over when he retired, and she said that she worked full time at the farm. When she left school, her focus was on the farm, and she said that she worked on this with a young family, and them with their partner on her other siblings did not. She claimed that her father had made assurances to her throughout which her mother denied where our had been made. But a court was satisfied on the fact that assurances of representations have been made have to a daughter on several occasions on, um, in terms of the actual estoppel plain that the daughter brought at the court took the view that one has to be satisfied that there was in fact, a detriment on the court said that there was the detriment because the claimants work on the farm over the years could be regarded as a relevant detriment include long hours. There was low pay. She took very few old days. Uh, on, uh, family members often would, of course, take all days. But she took very few on she devoted very much alive towards his farm land. In the circumstances, a person employed in an arm's length transaction would simply not have pointy hours that she did no work, no accepted to pay that she didn't know, accepted a number of holidays that she took. And if on that basis the course satisfied that a detriment was the an inequity had the reason in the circumstances, you know, in terms of relief, the court took DaVita relief should be given to her in the circumstance. And she got an amount in the region off approximately £1,170,000 which was more than 1/4 of the value off the farm. But less than 1/2 on this would be an adequate some to represent her for the estoppel fight. In the case of Dobson and Griffey of 2018 which emphasises how important it is to ensure that order constant constituent parts of estoppel established. This was a claim for sharing the process of the sale of the property, which again was a farm in these circumstances on, uh, the court did say that in terms of the law on this, one has to show if you're relying upon the stop, or that there is a constructive trust on there for a common intention and ended detriment. If one is relying upon this stop or then one has to show that their words said, or conduct made by wife assurances to the other person on the burden of proof is on the person who's of course, trying to establish this in the circumstances. And that's on a standard off proof, which is on a bounce off probabilities on on the fact Assiut a court they'd say that would older with discussions between the parties here, there was insufficient evidence here to suggest that there was enough to suggest that the claimant would be entitled to a beneficial interest in the property. There were some discussions, but not to the extent to which it was being sorted, that the benefit idea beneficial interest should be then made available to claim it in the circumstances and they form the facts. There was no agreement between the parties for the claim to be entitled to half of any property realized on the sale of a joint under property in the second stances, and they put a claim actually failed. Okay, so you can see this is a very important because clearly has developed a lot over the years and you can see from some of the earlier cases. That's a stack and Dad. And we've had some more later cases, such as Dobson and Griffey and Harbour Field. Happy Field, which have looked specifically at the concept off a stop. Don't thank you very much indeed for lease in the hope That's useful Session for you. And now speaking next time. Thank you. Bye for now.
Webinar
Slides
Quiz 
3062 Users
171 Courses
157 Reviews
