Following the decision in Stack v Dowden1, the law concerning co-ownership and the parties presumptive corresponding shares of the property in both sole and joint ownership cases has undergone a substantial transfiguration

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‘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. Beneficial ownership mirrors legal ownership. What it is at odds with is the presumption of a resulting trust.’

Following the decision in Stack v Dowden, the law concerning co-ownership and the parties’ presumptive corresponding shares of the property in both sole and joint ownership cases has undergone a substantial transfiguration, with the substructure of the presumption of beneficial interest diverting from, and overruling, the previous decisions of Pettit v Pettit and Gissing v Gissing. The new presumptive standpoint would indeed appear to simplify the law surrounding disputes of beneficial interest, but to attempt to conceptualise the ‘simplicity’ of the subsequent principles is to greatly disparage the complexities, nuances and issues which also emanate from the resultant legal position.

The determination of beneficial interest in a property is primarily ascertained through express or implied trusts. Where there is an express declaration of trust, the shares contained therein are conclusive unless varied by subsequent agreements or affected by proprietary estoppel. Any such declaration must be manifested in writing, and where the title is to be held jointly the trust should be executed on the necessary TR1 or FR1 land registration forms, stating whether they are to be joint tenants or tenants in common. A joint tenancy manifests that the co-owners hold the property concurrently and upon death of a co-owner, their interest does not

pass under the usual laws of succession, but instead, passes to the surviving joint tenant under the doctrine of jus accrescendi (right of survivorship). A tenancy in common on the other hand, evinces that the property is owned in undivided shares, with each owner having a specified share in the land.

In the absence of an express declaration, the courts may infer beneficial interest through the equitable doctrines of constructive and resulting trusts. These operate to modify the formalities contained within s.53 (1) (b) and (c) and are, like express trusts, governed by the Trusts of Land and Appointment of Trustees Act. The flexibility of inference derives from the fact that there is no need for such trusts to be manifested in writing. Resulting trusts are implied where the land is purchased under sole ownership, but using funds belonging to another party toward the actual purchase price which were not intended as a gift or loan. Their equitable shares will be tantamount to their financial contribution and ‘crystallises on the date that the property is acquired’. A constructive trust is inferred where there is a common intention and the party, in reliance of that intention, acts to their detriment. Detrimental reliance will be satisfied by both post-acquisition financial and domestic contributions.

Stack v Dowden is the leading case in determining the apportionment of shares in property in the absence of express trusts. The most important aspect of the case was the fact that both parties kept their finances and bank accounts separate. The original ruling held that the property should be sold and the proceeds be divided

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equally, but the Court of Appeal allowed Ms. D’s appeal and ordered that the proceeds instead be split 65/35 in her favour. The case was then appealed to the House of Lords, where Baroness Hale’s judgment in considering the situation by way of constructive trust, formed what is now the current law and precedent in beneficial interest disputes. Lord Neuberger gave the dissenting judgment, disputing not the outcome, but the methodology in reaching the outcome, preferring the approach that apportionment should be determined with a starting point of actual contributions to purchase price, thereby favouring resulting trusts over ...

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