Stack v Dowden (HL)
- Date: 25/04/2007
Citation: [2007] UKHL 17; [2007] 1FLR 1858
Related Barristers: Lucy Theis QC, Francis Wilkinson & Miriam Shalom
Mr Stack and Ms Dowden cohabited for over 20 years and had 4 children. They lived together first in rented property, then in a property bought in the name of Ms Dowden, then most recently in a property bought in their joint names. They both made contributions to the purchase of the current property and it was agreed that they both had beneficial shares. The issue at trial was the extent of those shares, which were then determined to be equal. Ms Dowden appealed and the Court of Appeal, interpreting the facts differently from the trial judge, divided the equity 35/65% in favour of Ms Dowden, Carnwath LJ commenting that this area of the law was a 'witches' brew' and that it was arguable that there ought to be a presumption that when a property is owned in joint names then it was owned equally on severance of the tenancy.
In its judgment the House of Lords found that there should be such a presumption. Their Lordships also made a number of other findings:
The presumption of equality could be displaced if there were 'very unusual' circumstances (as was found in this case, where the proportionate ownership was still found to be 35/65% in favour of Ms Dowden)
The old form of words in the Land Registry transfer form in use before 1998 is not sufficient to create an express trust
The form of words in the current Land Registry Transfer Form (TR1) is sufficient to create an express trust (provided it is signed as a deed)
Compensation for exclusion (previously occupation rent) is now to be determined in accordance with sections 13(6) and 15 of the Trusts of Land and Appointment of Trustees Act 1996 (per Lord Neuberger)
In relation to properties owned in a single name, the establishment of a beneficial interest is to be dealt with in accordance with Oxley v Hiscock [2004] EWCA Civ 546, but without a search for fairness by the court, and also taking into account the parties' contributions to maintenance etc of the property.
The case thus provides a new basis for determining shares in jointly owned properties of cohabitants, and gives the authority of the House of Lords to the approach in Oxley v Hiscock to determining shares in property in the name of a single cohabitant.