Disputes and cohabitation solicitor James Burrows discusses the options if you’re an unmarried couple who are splitting up but jointly own a property.
We are frequently asked to advise clients on property ownership following the breakdown of a non-marital relationship. There are two potential forms that the dispute can take:-
- The property is in joint names, but one or other party is claiming a greater interest than the other; or
- The alternative is that the property is in one of the party’s names, but the other asserts an interest in it.
This article will look at the first of those two scenarios. The latter is discussed in my article Context is everything when it comes to cohabitation which can be found here.
Consider this situation
Two parties meet and the man moves into the house acquired in the female’s sole name but, as is increasingly common these days, they do not marry. The mortgage and utility bills are paid for by the woman.
The relationship develops and the parties proceed to have children together. Over the years they make improvements to the property and after ten years, the property is sold.
Another property is bought but this time it is placed in joint names. A mortgage is taken out but this is paid down by lump sums over the passage of time. This time the man does make some contributions to these lump sums.
After nearly 20 years the parties unfortunately separate. The question is, do the parties own the property in equal shares, in unequal shares or does the property actually belong to the woman outright?
These were (roughly) the facts of the leading case of Stack v Dowden which went to the highest court of land in 2007. The House of Lords (now the Supreme Court) concluded that Mr Stack owned 35% of the property and Ms Dowden owned 65%.
The Law distinguishes between two different types of ownership
English Law distinguishes between two different types of ownership-
- Legal ownership: if you are the legal owner then your name is on the Deeds. Your signature is required in order to sell, transfer or mortgage the property. You effectively administer the property;
- Beneficial ownership: beneficial ownership determines who has the right to occupy and enjoy the property.
The beneficial ownership can be held in one of two ways:-
- As joint tenants; or
- As tenants in common.
In the former, the parties are taken to share the property as one and, on the death of one, it automatically passes by survivorship to the other. In the latter, the parties each own a divisible share of the property and on their death that passes to their Estates. The share in which they hold the property can be unequal.
Determining how it is shared out
The judges in Stack v Dowden explained that the first thing to do was to see whether the conveyance contained a statement as to how the property was to be held (a declaration of trust) which was signed by the parties. If so, that will usually be determinative. If not, then the presumption when establishing how the beneficial ownership is actually held in the “domestic consumer context” is that beneficial ownership follows legal ownership. If there is more than one legal owner then they hold legal title in equally shares, and this is how the parties are taken to hold the beneficial ownership unless the contrary is shown.
To show the contrary, a party must show the Court that the parties’ shared a different intention, which they can evidence either by proving what their actual intentions were or by inference from how the parties behaved together. When considering this, the Courts will be looking at matters such as:-
- The discussions between the parties or advice received at the time of the conveyance;
- The reasons why the home was acquired in their joint names;
- The purpose for which the home was acquired;
- How the purchase was financed, both initially and subsequently;
- How the parties arranged their finances (whether separately or together);
- How the parties discharged the outgoings of the property and so forth.
What impacts the Courts decision when it comes joint property ownership?
In Stack v Dowden, whilst the property had been conveyed into the parties’ joint names and therefore the assumption was that beneficial interest was also owned in equal shares, Ms Dowden was able to show the contrary by relying on matters such as:-
- She had contributed far more of the cash paid towards the property from the sale of the previous property which, equally had been financed largely by her; and
- Despite the length of their relationship, the parties had kept their finances rigidly separate.
By the same token, Mr Stack had contributed towards paying down of the mortgage and had undertaken improvement works to both of the properties so he clearly had an beneficial interest in the property.
Points to take away
The outcome for Mr Stack and Ms Dowden was dictated by the facts and in any case where one joint owner alleges an unequal share of the property over the other then the Court will be scrutinising what the parties agreed or understood, both at the time of the purchase and afterwards.
Parties intending to move in together can avoid the possible acrimony and expense of litigation should the worst happen by discussing and recording in a Cohabitation Agreement or Declaration of Trust how they intend to own the property and what will happen in the unfortunate event that they separate. In most cases the relationship will either blossom or, if not, the parties separate on amicable terms. But too many cases end up in bitter and protracted court proceedings which prevent or delay either party moving on.
James Burrows is an Associate Solicitor at Stephens Scown’s Truro office in the specialist disputes team. The team is independently ranked number one in the region for their work and as such is highly regarded. If you would like to discuss joint property ownership and cohabitation agreements then please contact our team on 01392 210700 or via email at: firstname.lastname@example.org.