“There are two ways of jointly owning property, either as joint tenants or as tenants in common. I enclose a note explaining the difference and would be grateful if you could return one copy to me, signed by both of you, to indicate which way you would like to hold the property. If you have any queries, please do not hesitate to contact me.”
“(a) As Joint Tenants. This is the usual way that couples buy property. There is a general assumption that it is owned by them in equal shares although it is not conclusive. On the death of one party the whole of the party automatically belongs to the other. (b) As Tenants in Common. The parties can hold the property in unequal shares (e.g. one-third and two-thirds). On the death of one of them the deceased’s share will fall into their estate which means that it will either go as a bequest under a Will or to the next of kin if they die without a Will. If you wish to hold a property in this way, it is most sensible to enter into a Trust Deed showing what shares each person has and how the property will be maintained and the outgoings provided for. You must decide which way you wish to hold the property. Please indicate below by ticking the option you prefer and sending back the duplicate of this form, signed by each of you. In any event, you are advised to consider making a Will (a) [in which you] wish to hold as Joint Tenants (b) [you] wish to hold as Tenants in Common.”
“I refer to our discussion last week relating to a Trust Deed between yourself, your mother and your brother when I informed you that Trusts relating to property are a minefield from a legal point of view and the terms of any such trust should be carefully considered and embodied in a document. My view is that this could save your family considerable expense, particularly in the event of a death of any one of you. I trust that you will show this letter and enclosure to your mother and to your brother.”
“It is now clear that common intention is relevant both to whether a party has an interest in the property and to the quantum of that share if he does… The common intention that both A and B should have a beneficial interest in the property may be inferred or it may arise by express agreement. It will be inferred in two situations, the second of which arises from the judgments in Stack v Dowden and Abbott v Abbott: first, where B contributes directly to the purchase price, whether by a cash contribution or its equivalent, or by paying mortgage instalments; secondly, in response to changing social and economic conditions, the common intention may be inferred (or perhaps imputed) from the parties’ whole course of conduct in relation to the property. [It is said that] this second approach has generated criticism, not least because it offers little predictability nor certainty for third parties.”
“A constructive trust ‘does not come into being merely from a gratuitous intention to transfer or create a beneficial interest’, because such an intention would amount to an unenforceable declaration of trust. B must have acted to his detriment in reliance upon the parties’ common intention and in the reasonable expectation that he would thereby acquire an interest in the property. It is this detriment that takes the trust outside the formal requirements normally applicable to declarations of trusts of land. The acts of detrimental reliance must amount to ‘an irrevocable change of legal position’ and be of a kind upon which B could not reasonably have been expected to embark unless he or she was to have an interest in the property. B will therefore acquire no interest if the acts are ones which he or she would have undertaken in any event. In consequence, the performance of normal domestic duties will not suffice. The extent to which acts unrelated to the acquisition or improvement of the property will satisfy the requirement of detriment has not been finally determined. The House of Lords has held that a payment by B to reduce the overdraft of a company that had purchased the property used by A and B as their matrimonial home was not referable to its acquisition. However, where A promised B that he would provide her with a home for the rest of her life, and in reliance upon this B abandoned her flat and a promising academic career in Poland, those acts were considered to be a sufficient detriment to justify the imposition of a constructive trust.”
“Although the proportionate shares of the parties may be determined at the time of the express or implied agreement between them, the valuation of those shares takes place on the dissolution of the trust. The trust terminates when the parties’ interests are realised (whether on sale or when one party purchases the interest of the other), not as was once thought on the date when the parties separated. Where the parties have expressly agreed the shares in which they are to hold, that will normally be conclusive, and a court will depart from it only if there is good cause to do so. In the absence of such agreement, the position is less clear, and recently there has been a change in judicial practice from quantification that is determined by reference to the parties’ contributions to one that depends upon the common intentions of the parties as deduced from all relevant circumstances.”
“That scrutiny will not confine itself to the limited range of acts of direct contribution of the sort that are needed to found a beneficial interest in the first place. It will take into consideration all conduct which throws light on the question what shares were intended. Only if that search proves inconclusive does the court fall back on the maxim that ‘equality is equity.’”
“This approach does in fact accord with a number of earlier authorities which suggested that the common intention as to the extent of a claimant’s beneficial interest did not have to be ascertained ‘once and for all at the date of its acquisition’ and there is now little doubt that this should be the approach adopted. In both Stack and Abbott the court approved the approach presented by the Law Commission in its discussion paper on ‘Sharing Homes’ that: ‘If the question really is one of the parties’ ‘common intention’, we believe that there is much to be said for adopting what has been called a ‘holistic approach’ to quantification, undertaking a survey of the whole course of dealing between the parties and taking account of all conduct which throws light on the question what shares were intended.’”
“We discussed on the telephone how to protect Kevin, and I told him”
“I think I explained the distinction to them. They gave no indication that they had made a decision as to which was to apply.”
“I naturally assumed that as Mike had set up and contributed to the purchase of the house that I would be entitled to a third share of the house as valued at January 2001. Lesley Seifert listed it on the probate on my understanding that this was an asset of Mike’s. I was not aware until after”
“I did not then have an understanding of tenants in common and joint tenants. When it was explained to me by Kevin I fully accepted it was joint tenants. I knew it was money I would receive down the line. That would be the share in future when Chrystalla passed away.”
“As I know you are arranging a mortgage, I will wait to hear from you when you have completed your arrangements. In the meantime, I shall take no further action.”