JONES v KERNOTT [2011] UKSC 53

01/01/2012

A PRACTICAL GUIDE by Luke Barnes

A. Practice Points

B. Introduction – the key principles in Jones v Kernott

C. The principles in practice

(1) Inference and imputation

(2) Joint names cases with no express declaration of trust – two principal questions:

(i) Is the Stack v Dowden ("Stack") presumption displaced ?
(a) the presumption displaced by a common intention at the time of purchase

(b) the presumption displaced by a common intention formed at a later date

(c) note on the variation of interests created by an express declaration of trust

(ii) If the Stack presumption is displaced, what are the parties' unequal shares

D. Sole name cases – Jones v Kernott's effect

E. Authorities

I open this guide with a series of practice points – followed by a detailed analysis of Jones v Kernott

A. Practice points

Jones v Kernott is primarily focussed at joint names cases with no declaration of trust, but its impact is likely to extend much wider

• the starting point in such joint names cases is the presumption, established in Stack v Dowden [2007], that the parties are beneficial joint tenants and thus entitled to joint and equal beneficial interests

• the Stack presumption may be displaced by proof that the parties had a different common intention on acquisition or later formed the common intention their shares would change

• the parties' common intention is to be determined objectively and the court is under a duty to draw inferences (objective deductions) from the facts of the case, even where the evidence is sparse and conflicting

• the process by which the court will quantify undefined beneficial interests has been greatly clarified, in both joint names cases (where the presumption of equality is displaced) and sole name cases

• when the Stack presumption is displaced or, in a sole name case, where the claimant has established a beneficial interest, but the court is unable to ascertain by direct evidence or by inference what the parties' actual intention was as to their shares, each is entitled to the share the court considers fair having regard to the whole course of dealing between them in relation to the property

• the definitions of inferred and imputed intention have now been broadly settled; however, it is likely to be the exercise of inference which provides the greatest scope for argument in a given case, followed by the issue of what would be fair on the facts

• the facts in Jones v Kernott compelled the inference that the parties formed the intention, a couple of years after their separation, that their shares would alter. All the relevant dealings occurred post-separation, while their pre-separation conduct was agreed to be consistent with joint and equal shares

Jones v Kernott has dramatically improved the prospects for arguments that the parties' beneficial interests were varied informally – and provides a further weakening of the Stack presumption

• claimants in sole name cases probably have improved prospects of establishing a beneficial interest in the light of Jones v Kernott. CPS v Piper & or [2011] and Aspden v Elvy [2012] are examples of this trend

• any joint names or sole name case may provide opportunity for forceful argument on the amount of the parties' shares – possibly even in the teeth of an express declaration of trust or, say, a cohabitation agreement

• the variation of the parties' equal interests and the 90:10 result in Jones v Kernott were clearly, but not exclusively, related to financial considerations

• domestic co-ownership disputes are becoming ever more fact-sensitive. Careful preparation and analysis is essential

• proprietary estoppel may provide a helpful cause of action in both joint and sole name cases – for it does not require common intention (whether inferred or imputed)

B. INTRODUCTION – THE KEY PRINCIPLES IN JONES v KERNOTT

I take these principles to be established by the judgments of the Justices of the Supreme Court:-

(1) In joint names cases, where there is no declaration of trust, the starting point is that equity follows the law. One begins the search for the allocation of shares in the property with the presumption that the parties are joint tenants and are thus entitled to equal shares.

(2) That presumption can be displaced by showing:
(a) that the parties had a different common intention at the time when they acquired the home; or
(b) that they later formed the common intention that their respective shares would change.

(3) Their common intention is to be deduced objectively.

(4) When the presumption of joint tenancy is thus displaced, but the court is unable to ascertain by direct evidence or by inference what the parties' actual intention was as to the shares each would own, the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property.

(5) Each case will turn on its facts. Financial considerations are relevant but many other factors may enable the court to decide what shares were either intended or fair.

(6) Propositions (3), (4) and (5) will apply to the assessment of quantum where the claimant establishes an interest in a sole name case.

Great confusion had been caused by these dicta of Lady Hale in Stack v Dowden:
[60] "the search is for the parties' intention, actual, inferred or imputed" and
[61] "the court [may not] abandon that search in favour of the result which the court itself considers fair".

Confusion as to what the court's approach should be has been resolved considerably. The Justices of the Supreme Court were unanimous in restoring the 90:10 apportionment of the beneficial interests in the former family home provided by the judgment at first instance (and upheld by Nicholas Strauss QC on the first appeal).

The majority held that the judge could and should have inferred from the parties' conduct that they had formed the intention, in or about 1995, that their interests should vary from a beneficial joint tenancy, and that Mr Kernott's interest should crystallise at that time, so that he would have the sole benefit of any capital gain in his new home and Ms Jones would have the sole benefit of any capital gain in the former family home. That would produce an outcome, at the date of trial in 2008, of so close to 90:10 that the appellate court should not interfere.

Jones v Kernott applies most clearly to these issues:-

(1) In a joint names case with no express declaration of trust:- is the Stack presumption of beneficial joint tenancy displaced, at the time of acquisition or later ?

(2) In joint names cases (where the presumption is displaced) and sole name cases:- to quantify the beneficial interests, the court will seek direct evidence, and must draw appropriate inferences from the evidence before it. If it proves impossible to assess the parties' intention by those means, the court will supply a quantification it considers fair.

Jones v Kernott throws up various other issues, including:-

(3) May the court impute an intention to hold other than as beneficial joint tenants or (in a sole name case) an intention to share beneficial ownership ?

(4) In a joint names case with an express declaration of trust – may the parties informally vary their beneficial interests ?

(5) In a sole name case, will Jones v Kernott alter the court's approach to the inference of a common intention to share beneficially ?

C. THE PRINCIPLES IN PRACTICE

(1) The definitions of INFERENCE and IMPUTATION in this line of cases have been greatly clarified – although controversy remains about those two exercises, and even whether they amount to nearly the same thing in practice

Four members of the Supreme Court cited Lord Neuberger's words from Stack v Dowden, which may now have become the accepted definition of inferred and imputed intention:

[126] An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements. An imputed intention is one which is attributed to the parties, even though no such actual intention can be deduced from their actions and statements, and even though they had no such intention. Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend.

However, in Jones v Kernott it was in respect of the role played by those two classes of intention that the members of the Supreme Court split 3 – 2. For Lord Walker and Lady Hale JJSC, with whom Lord Collins JSC agreed:

[34] ... while the conceptual difference between inferring and imputing is clear, the difference in practice may not be so great. In this area, as in many others, the scope for inference is wide. The law recognises that a legitimate inference may not correspond to an individual's subjective state of mind. As Lord Diplock also put it in Gissing v Gissing [1971] AC 886, 906:

"as in so many branches of English law in which legal rights and obligations depend upon the intentions of the parties to a transaction, the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party."

The point has been developed by Nick Piska, "Intention, Fairness and the Presumption of Resulting Trust after Stack v Dowden" ...

"the imputation / inference distinction may well be a distinction without a difference with regard to the process of determining parties' intentions. It is not that the parties' subjective intentions are irrelevant but rather that a finding as to subjective intention can only be made on an objective basis."
...

[36] ... there will continue to be many difficult cases in which the court has to reach a conclusion on sparse and conflicting evidence. It is the court's duty to reach a decision on even the most difficult case As the deputy judge (Mr Nicholas Strauss QC) said in his admirable judgment [2010] 1 WLR 2401, para 33 (in the context of a discussion of fairness) "that is what courts are for".

In contrast Lord Kerr JSC considered (at para [75]) that there should be a clear dividing line between inference and imputation. "As soon as it is clear that inferring an intention is not possible, the focus of the court's attention should be squarely on what is fair ... an obviously different examination."

Lord Wilson JSC agreed with the 90:10 split, not on the basis that it could be inferred, but that it was to be imputed to the parties. He clearly considered that a distinction stood to be drawn between the two exercises. He pointed out that Jones v Kernott did not require the court to consider whether the (first stage) intention to share beneficially could also be imputed, if not otherwise identifiable. That question, he said, will merit careful thought.

Conclusion

The exercise of inference in this context is to be widely defined, on the majority view at least. The 'objective deduction' appears to be fairly unfettered. And a party's actual intention may be held not to have been his intention, when objectively deduced ! In such a case, the court seems very close to attributing an intention to the parties, and "inference" does indeed begin to resemble "imputation".

A good illustration of this approach is provided by Fowler v Barron [2008], a joint names case decided at first instance a week before the decision in Stack v Dowden. There was no direct evidence of intention. The relationship lasted 23 years and produced two children. The father paid roughly one half of the purchase price by way of deposit, all the mortgage instalments, council tax and utilities' bills. The judge ruled that the mother had no beneficial interest.

On appeal, at para [30] Arden LJ, (with whom Toulson and Waller LJJ agreed) held that the father had failed to rebut the presumption of joint tenancy in equity:-

[32] [To] determin[e] the parties' shared intentions about the beneficial ownership of the property, the court must consider the whole of the parties' relationship so far as it illuminates their shared intentions about the ownership of the property and the court must draw any appropriate inferences.

The judge was held to have erred in determining the parties' shares by reference to their financial contributions. Although it was never intended Ms F would make mortgage payments, the Court held that signing the mortgage deed was not inconsistent with a shared intention of joint beneficial ownership. In addition, the parties executed mutual wills and Ms F spent much of her income on herself and the children.

Arden LJ cited the passage from Lord Diplock's speech in Gissing v Gissing set out above and ruled that Mr B's (alleged) tacit intention, that Ms F should only inherit the property if he died while they were still together, did not assist him to rebut the presumption, since it was not evidence of a shared intention.

The proper inference was that, with the exception of her clothing, her payments were her contributions to household expenses for which both parties were responsible. A further appropriate inference was that they intended that it should make no difference to the interests which party paid for what expense.

The approach in Barron v Fowler has been largely vindicated, now that the majority in Jones v Kernott has made it clear that the court is to be bold in deducing inferences from the evidence.

(2) JOINT NAMES CASES with no express declaration of trust - two principal questions:

(i) Is the Stack presumption displaced due to the parties' common intention at the time of purchase or a common intention formed later ?

(ii) If so, what are the unequal shares ? Actual, inferred or imputed intention.

In answering both those questions, the court will take into account a wide range of factors e.g. as set out at paragraph [69] of Stack v Dowden. It is clear from that list and from the approach in Stack that the court will take into account evidence of the parties' words and deeds both before, at the time of and subsequent to the purchase.

"[69] Each case will turn on its own facts. Many more factors than financial considerations may be relevant to divining the parties' true intentions. These include:

(1) any advice or discussions at the time of the transfer which cast light upon their intentions then;
(2) the reasons why the house was acquired in their joint names;
(3) the reasons why (if it be the case) the survivor was authorised to give a receipt for capital moneys;
(4) the purpose for which the home was acquired;
(5) the nature of the parties' relationship;
(6) whether they had children for whom they both had responsibility to provide a home;
(7) how the purchase was financed, both initially and subsequently;
(8) how the parties arranged their finances, whether separately or together or a bit of both;
(9) how they discharged the outgoings on the property and their other household expenses;
(10) when a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is the owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally;
(11) the parties' individual characters and personalities may also be a factor in deciding where their true intentions lay."

(i) Is the Stack presumption displaced due to the parties' common intention at the time of purchase or a common intention formed later ?

Jones v Kernott is decisive authority that the issue of whether the presumption is rebutted may be decided on the basis of the parties' actual or inferred intention (as defined). The question of whether that issue could be decided by imputed intention is not yet clear.

(a) the presumption displaced by a common intention at the time of purchase

I set out some examples of the courts' treatment of the Stack presumption since its appearance in 2007. There is no reason to think that any of the outcomes would be different, if Jones v Kernott were applied.

The presumption was upheld in Fowler v Barron, considered above. It was displaced in Stack v Dowden, Laskar v Laskar [2008] and Adekunle & Or v Ritchie [2007].

In finding that the presumption of beneficial joint tenancy was rebutted in Stack v Dowden the factors Baroness Hale identified as relevant were that the parties contributed unequally to the purchase price and they intended to reduce the loan as quickly as they could. She said these were certainly factors which could, in context, support the inference of an intention to share [un]equally.

The context, she found, was that they did not pool their resources, keeping quite separate savings and investments (apart from the Property and associated endowment policy). They undertook separate responsibility for household outgoings – S for mortgage interest and endowment premiums, D for all other regular commitments. She ruled:

[92] Before the Court of Appeal Ms Dowden contended for a 65%* share and in my view she has made good her case for that.

(* the judgment gives little detail of how 65% was arrived at, save that it was the woman's contention – on the facts of that case, it smacks of a resulting-trust style quantification).

Stack was a surprising decision – particularly given the 27 year duration of the parties' relationship, and their raising of four children.

- In Adekunle v Ritchie the issue was the respective beneficial interests in a property of the (deceased) mother (M) and the defendant, her son (S), who was one of her ten children and had been joint proprietor with his mother.

The judge held that, although Baroness Hale primarily had in mind cohabiting couples in Stack (HL), she did not limit her approach to those cases. This case was a domestic one and the presumption applied. However, where one is not dealing with a cohabiting couple, it may well be easier to find the facts were unusual so as to displace the presumption. S's share was put at one third, taking a "holistic approach."

• M had contributed a tenant's discount of approximately one half of the purchase price
• the purchase was joint as she was unable to fund the mortgage without assistance from her son
• the restriction entered at the Land Registry implied the conveyancing solicitor understood the parties did not intend a joint tenancy
• the parties' finances were separate
• M had 10 children - it was unlikely she intended her whole estate to pass to S.

- In Laskar v Laskar a mother and daughter purchased the council flat of which the mother was the sole tenant. The transfer shed no light on the beneficial interests and there were no discussions about them.

Lord Neuberger approved HHJ Behrens' ruling in Adekunle that the presumption applied prima facie to a purchase by mother and child. But in Laskar, it did not apply, when the parties primarily purchased the property as an investment for rental. Even if it did apply, he found ([19]) the presumption was rebutted for five reasons.

• the two parties kept their financial affairs separate (as in Stack v Dowden)
• the property was primarily purchased as an investment
• there was no reason to think the mother intended the daughter to receive a significant gift which was not shared with her other children
• if the tenant's discount was treated as a contribution to the purchase price, as his lordship believed was correct, their contributions were significantly different
• the primary reason for the daughter coming in as a joint purchaser was that the mother could not afford it alone.

It seems that in quasi-commercial and / or parent-child cases it will continue to be relatively simple to displace the presumption of joint beneficial ownership save, perhaps, where the surviving proprietor was an only child – encouraging the inference that the parties intended the right of survivorship to apply.

(b) The presumption displaced by a common intention formed at a later date

It is helpful that in Jones v Kernott the majority in the Supreme Court have produced a clear example of a case in which the intention to vary "could and should have been inferred", together with their reasons for so ruling. The relevant facts were:-

Ms J contributed £6,000 to the (1985) purchase price of £30,000 and the balance was paid by an endowment mortage in their joint names. In 1986 they jointly borrowed £2,000 to build an extension. Mr K did some of the labouring work and paid friends and relations to do other work. The extension probably enhanced the value of the property by around 50%, from £30,000 to £44,000.

Despite the parties' different contributions to the purchase price, mortgage, and improvement of the property, it was common ground that they held as beneficial joint tenants at least until their separation in 1993. After slightly over 8 years' cohabitation, during which they shared the household expenses, (Ms J paying the mortgage) Mr K moved out in 1993.

Ms J remained in the property with the children and paid all the household expenses herself. Mr K made no further contribution towards the property and very little contribution to the support of the two children. That situation persisted until trial in 2008.

The property was marketed in October 1995 for £69,995, but not sold. At around this time, or a little later, the parties cashed in a joint life insurance policy and divided the proceeds equally, which allowed Mr K to pay a £2,800 deposit on a home of his own purchased for around £57,000 in May 1996. He was able to afford his own accommodation because he was not making any contribution towards the former family home, and no significant contribution towards the support of his children.

At the time of trial, the former family home was valued at £245,000, with a mortgage of £26,664. The endowment policy was worth £25,209, so the net equity was £243,545. Mr K's new property was valued at £205,000, with a mortgage of £37,698 and net equity of £167,032.

As the majority in Jones v Kernott put it (per Walker / Hale JJSC at para [48]):

... This home was put on the market in late 1995 but failed to sell. Around that time a new plan was formed. The life insurance policy was cashed in and Mr Kernott was able to buy a new home for himself. He would not have been able to do this had he still had to contribute towards the mortgage, endowment policy and other outgoings on [the former family home]. The logical inference is that they intended that his interest ... should crystallise then. Just as he would have the sole benefit of any capital gain in his own home, Ms Jones would have the sole benefit of any capital gain in [the former family home]. In so far as the judge did not in so many words infer that this was their intention, it is clearly the intention which reasonable people would have had had they thought about it at the time. But in our view it is an intention which he both could and should have inferred from their conduct.

The facts in Jones v Kernott are somewhat unusual i.e. the cashing of the joint policy and the purchase of a second property. It is suggested that, without those factors, Mr Kernott may very well have retained his one half interest, leaving Ms Jones to pursue an equitable accounting exercise as a remedy for her contributions post-separation.

The mechanism:- the "ambulatory" constructive trust

It seems tolerably clear that the majority in the Supreme Court considered that, in the absence of an express declaration of trust, at any given time the co-owners' beneficial interests will be quantified by virtue of a common intention constructive trust.

Per Lord Walker and Lady Hale JJSC in Jones v Kernott::

[14] It was also accepted [in Stack v Dowden] that the parties' common intentions might change over time, producing what Lord Hoffman referred to in the course of argument as an "'ambulatory' constructive trust": Lady Hale at para 62. An example, given in para 70, was where one party had financed or constructed an extension or major improvement to the property, so that what they had now was different from what they had first acquired. But of course there are other examples. The principal question in this case is whether this is one.

[15] At its simplest the principle in Stack v Dowden is that a "common intention" trust, for the cohabitants' home to belong to them jointly in equity as well as on the proprietorship register, is the default option in joint names cases. The trust can be classified as a constructive trust, but it is not at odds with the parties' legal ownership. What it is at odds with is the presumption of resulting trust.

[16-17]:

... a "common intention" trust is of central importance to "joint names" as well as "single names"[sic] cases ... [but] the starting point for analysis is different in the two situations ... because the claimant whose name is not on the proprietorship register has the burden of establishing some sort of implied trust, normally what is now termed a "common intention" constructive trust. The claimant whose name is on the register starts (in the absence of an express declaration of trust in different terms, and subject to what is said below about resulting trusts) with the presumption (or assumption) of a beneficial joint tenancy.

In a joint names case with no express declaration of trust, it would seem that a constructive trust based on common intention exists from the time of the transfer into joint names – although the mechanism by which it arises is not clear. In sole name cases, the constructive trust must be proved by the claimant.

On one interpretation, it is by virtue of a common intention constructive trust that the parties might alter existing beneficial interests, despite the formalities required by section 53(1)(b) and (c) of the Law of Property Act 1925: that is, for a declaration of trust respecting land to be proved by signed writing and a disposition of a subsisting equitable interest to be in signed writing, save for the creation or operation of resulting, implied or constructive trusts (viz s.53(2)).

Somewhat mysteriously, however, numerous cases have seen the higher courts approve of the possibility that the parties' beneficial interests may be found to have varied during the period of co-ownership, without mentioning ss53(1) or (2) and without defining the legal or equitable mechanism for the variation. For practical purposes, it seems that the court will require compelling evidence as the basis for the inference (widely defined) of a common intention to that effect. The issue of whether a constructive trust is a pre-requisite of a variation has not been decided authoritatively.

(c) Note on the variation of interests created by an express declaration of trust

Where an express declaration of trust does set out the beneficial interests, orthodoxy suggests this would rule out them being affected by an "ambulatory" or other constructive trust.

In Goodman v Gallant [1986], the Court of Appeal ruled (per Sir Christopher Slade) at 110H-111A:

In a case where the legal estate in property is conveyed to two or more persons as joint tenants, but neither the conveyance nor any other written document contains any express declaration of trust concerning the beneficial interests ... (as would be required for an express declaration of this nature by virtue of section 53(1)(b) of the Law of Property Act 1925), the way is open for persons claiming a beneficial interest in it or its proceeds of sale to rely on the doctrine of "resulting, implied or constructive trusts": see section 53(2).

If ... the relevant conveyance contains an express declaration of trust which comprehensively declares the beneficial interests ... there is no room for the application of the doctrine of resulting implied or constructive trusts unless and until the conveyance is set aside or rectified; until that event the declaration contained in the document speaks for itself.

However, in Stack v Dowden Lady Hale said (at para [49]):

No one now doubts that ... an express declaration of trust [in the conveyance] is conclusive unless varied by subsequent agreement or affected by proprietary estoppel: see Goodman v Gallant.

This dictum is surprising in making no mention of a constructive trust, particularly since a few paragraphs later she reminded herself of the requirements of section 53(1)(b) and the provisions of section 53(2).

More recently, in Clarke v Meadus [2010], which involved an express declaration of trust which one party sought to displace by virtue of a proprietary estoppel or constructive trust, Warren J referred to "the question whether a constructive trust might have arisen after [the date of the express declaration] to displace the express trusts declared".

Allowing the claimant's appeal against the Master's strike-out of her claim, he ruled that (para [42]) "nothing in Stack v Dowden or Goodman v Gallant can be read as suggesting that this is not possible: it all depends on the facts".

He went on to say, at para [56]:

It cannot ... sensibly be argued that once beneficial interests have been declared in a formal document, those interests become immutable and incapable of being affected by a proprietary estoppel.

Conclusion: until a sufficiently senior court rules on the point, there seems to be some doubt as to whether an express declaration of trust remains conclusive, in the absence of rescission or rectification. If that doubt was well-founded, the purpose of declaring the beneficial interests in the transfer would be seriously undermined.

First, a written variation complying with section 53(1)(b) or (c) would doubtless be effective. Secondly, claimants may be able to 'run' a case based on variation by a constructive trust or proprietary estoppel, although this point is ripe for further consideration. Thirdly, if a variation may be based on a common intention constructive trust, it seems to follow from Jones v Kernott that the court may infer an informal variation or possibly impute one to the parties.

Fourthly, it is unclear how the court would resolve the tension between informally varied beneficial interests and the requirements of section 53(1), in circumstances where no constructive trust or proprietary estoppel arose.

(ii) If the Stack presumption is displaced, what are the unequal shares ? Actual, inferred or imputed intention.

Where the parties shared an actual, communicated common intention as to the amounts of their shares, this will be determinative save, it is suggested, for vitiating factors such as fraud, duress or undue influence.

In the absence of such, the court will take a pro-active approach to inferring common intention, as demonstrated vividly in Jones v Kernott. The majority in the Supreme Court ruled that, on the basis of their inference that Mr Kernott's beneficial interest crystallised in 1995, (per Walker / Hale JJSC):

[49] A rough calculation on this basis produces a result so close to that which the judge produced that it would be wrong for an appellate court to interfere. If we take the value of the property as £60,000 in later 1993 (or £70,000 in late 1995) and the value in 2008 as £245,000, and share the £60,000 (or £70,000) equally between the parties, but leave the balance to Ms Jones, that gives him £30,000 (£35,000) and her £215,000 (£210,000), roughly 12% (14%) and 88% (86%) respectively. This calculation ignores the mortgage as in 2008 [it] was almost fully covered by the endowment policy which was always meant to discharge it.

Para [48] makes it clear that the majority reached their decision on quantum by inference. That inference appears to be that the interest crystallised in 1993 or, more likely, 1995 as a percentage beneficial interest, and that this (12 or 14% as the case may be) was too close to the judge's 10% in order for that to be altered on appeal. It seems clear that the parties did not actually hold this common intention – rather, their common intention was held to be such by a process of objective deduction.

Interestingly, the majority took into account a wide range of factors to draw an inference. Yet it made use of a relatively precise calculation in order to assess the present value of Mr Kernott's interest, although there was no direct evidence of the parties' intentions. So it provides an interesting example of a case where the court did not take a broad brush to the valuation of the interest.

Are there any lessons to be drawn to assist in assessing quantum in a given case ?

It will be very interesting to see how case law develops. Key decisions in the mid 1990s (Midland Bank v Cooke [1995], Drake v Whipp [1996]) saw successful appeals against resulting trust style quantifications (8% and 19% respectively) and the express application of a survey of the whole course of dealings (Cooke: result on appeal - 50:50) and a broad brush under a constructive trust (Drake: result on appeal - 2/3:1/3).

However, in Oxley v Hiscock [2004] the trial judge's 50:50 division was altered to 60:40 on the basis that it would not be fair if the man's larger capital contribution to the purchase were ignored. In Stack, 50:50 was replaced by 65:35 – primarily (it is submitted) by reason of disparate capital contributions. And in Kernott the Supreme Court gave detailed consideration to the parties' capital and financial arrangements at the material times.

Somewhat counter-intuitively, then, given the courts' insistence on considering all the factors, the recent, leading cohabitants' cases (Oxley v Hiscock, Stack v Dowden and Jones v Kernott) saw outcomes which were clearly related to the parties' financial arrangements. This will not be allowed to become a straitjacket, however – as Fowler v Barron demonstrates.

In quasi-commercial and / or parent-child cases there is likely to be an enhanced prospect that the court will apply a resulting trust-style apportionment of the beneficial interests – but this will not be a rule of law.

It is clear from Jones v Kernott that the approach to quantifying shares will be the same in joint and sole name cases – although the factor that the parties made a conscious decision to put the property in joint names will almost inevitably carry significant weight.

Where the court is unable to draw an inference on the evidence, it will apply the criterion of fairness. Whether this is conceptualised as based on an imputed common intention or a freestanding criterion independent of intention may make little difference in practice.

D. SOLE NAME CASES – Jones v Kernott's effect

Does C establish a beneficial interest ?

I do not consider Jones v Kernott will have any significant affect on express common intention constructive trusts, which depend on evidence of express discussions (no matter how imprecise their terms or how imperfectly remembered) demonstrating an arrangement, agreement or understanding to share the property beneficially. It is well established that the court will assess the intention demonstrated by the discussions objectively (e.g. Eves v Eves [1975], Grant v Edwards [1986]).

Perhaps the single most important issue thrown up by Kernott is: will its reinvigorated exercise of inference apply to the inference of a common intention to share beneficially ?

The inferred common intention was authoritatively described by Lord Bridge (giving the unanimous judgment of the House of Lords) in the seminal case of Lloyds Bank v Rosset [1991] (132G-133A).

where there is no evidence to support a finding of an agreement or arrangement to share, ... and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But as I read the authorities, it is at least extremely doubtful whether anything less will do."

Although in Stack it was said to be arguable that Lord Bridge had set the hurdle too high, Rosset was not departed from – and since Stack the domestic courts' approach in sole name cases has tended to reflect orthodoxy (James v Thomas [2008] being a striking example of the court declining to infer an intention to share beneficially).

Post-Jones v Kernott, if inference is the exercise of objective deduction from all the evidence, will its scope of inquiry continue to be limited, at the first stage of inquiry in sole name cases, to the provision of direct financial contribution to the property's acquisition ? This seems unlikely, to judge by the court's approach in CPS v Piper [2011], although in that case the successful claimant was found to have contributed £30,000 to the purchase, so stood to acquire a beneficial interest on orthodox principles anyway.

Even more recently, in Aspden v Elvy [2012] EWHC (Ch) 1387, (decided by HHJ Behrens on 23 May 2012), the judge inferred, in the absence of discussions between the parties, a common intention that Mr Aspden should acquire a beneficial interest in Ms Elvy's property by virtue of £65 – 70,000 worth of works he carried out there. He went on to impute an intention that the share was worth 25% of the £400,000 property. A proprietary estoppel of the same value also arose on the facts. A key point was that, if the works really had been a gift (as Ms E contended) then Mr A would have been left homeless and without capital.

It is most unclear whether the court may impute to the parties a common intention to share beneficially. Orthodoxy would say not, and it may be that a sole name case will have to go to the Supreme Court before that question is answered conclusively.

When the claimant establishes a beneficial interest, its amount will be determined on the principles set out in Jones v Kernott.

© Luke Barnes, 2012

E. AUTHORITIES

Aspden v Elvy [2012] EWHC 1387 (Ch)

CPS v Piper & or [2011] EWHC 3570 (Admin)

Jones v Kernott [2011] UKSC 53

Clarke v Meadus [2010] EWHC 3117 (Ch)

Laskar v Laskar [2008] EWCA Civ 347

Fowler v Barron [2008] EWCA Civ 377

James v Thomas [2008] EWCA Civ 1515

Adekunle & Or v Ritchie [2007] BPIR 1177, Leeds CC

Stack v Dowden [2007] UKHL 17

Oxley v Hiscock [2004] EWCA Civ 546

Drake v Whipp [1996] 1 FLR 826, CA

Midland Bank v Cooke [1995] 2 FLR 915, CA

Lloyds Bank v Rosset [1991] 1 AC 107, HL

Grant v Edwards [1986] Ch 638, CA

Goodman v Gallant [1986] Fam 106, CA

Eves v Eves [1975] 1 WLR 1338, CA

 

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