Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

Written notice is restricted to land.216 It was not available for personal property before 1926,217 nor afterwards,218 though the exclusion of personalty is most unfortunate.219

(1) Must legal and beneficial joint tenants be identical?

[16.40] Written notice works “where a legal estate is vested in joint tenants beneficially”.220 At face value this states a condition that the trustees of the legal estate must be identical to the beneficial joint tenants, since only in that case is the legal estate vested in the beneficial joint tenants.221 Thus if A and B hold the legal estate on trust for themselves as beneficial joint tenants, A could sever by written notice, but not if the legal estate was vested in T1 and T2. The courts should try to read the notice provision expansively.

(2) Giving of notice

[16.41] Written notice must be given “by the joint tenant wishing to sever” and with his authority222 “to the other joint tenants.” Correspondence between advisers will not do.223 A notice can be left at the last known place of abode or business in the United Kingdom or sent by registered post.224 A bizarre possibility is that a notice by A is properly served by posting it to B at the property, even if it is taken in by A,225 as demonstrated by Kinch v. Bullard.226 A married couple remained joint tenants of the matrimonial home though their relationship had deteriorated. When the wife received a diagnosis of a terminal cancer she decided to end the joint tenancy and instructed her solicitor to post a notice to her husband at the property. He had a heart attack on August 6th, the day before the notice was pushed through the letter box. His wife, now favouring her chances of survivorship, picked up the letter containing the notice and destroyed it. The husband in fact died that same month whereas the wife survived until the following January. But, despite the destruction of the notice, a severance had occurred. Once given the notice is binding.

216 Nielson-Jones v. Fedden [1975] Ch 222, 229C; Burgess v. Rawnsley [1975] Ch 429, 447, Sir John Pennycuick; Harris v. Goddard [1983] 1 WLR 1203, 1208E. Land is defined by LPA 1925 s 205(1)(x).

217Williams v. Hensman (1861) 1 John & H 546, 70 ER 862; P Luther (1995) 15 LS 219.

218Lord Denning MR in Burgess v. Rawnsley, [1975] Ch 429, 438, 439G–440B, mistook the force of the word “other” in s 36(2).

219Nielson-Jones v. Fedden [1975] Ch 222, 229B, Walton J; Burgess v. Rawnsley [1975] Ch 429, 440A, Lord Denning MR.

220LPA 1925 s 36(2).

221Wolstenholme & Cherry (13th ed by JT Farrand) vol 1, 98.

222Harris v. Goddard [1983] 1 WLR 1203 (notice given while husband in coma by his solicitors ineffective); PV Baker (1984) 100 LQR 161; S Coneys [1984] Conv 148.

223At 1207F–H; Nielson-Jones v. Fedden [1975] Ch 222, 230, despite [1975] Ch 429, 440C, Lord Denning

MR.

224LPA 1925 s 196(3)–(4). The service provided for a century and a half by the Royal Mail is now opened to any “postal operator”: Postal Services Act 2000.

225Re 88 Berkeley Road, London NW9 [1971] Ch 648; (1971) 87 LQR 155.

226[1998] 1 WLR 421, Neuberger J; M Percival [1999] Conv 60.

(3) Statement of intention to sever

[16.42] Where “any tenant desires to sever the joint tenancy in equity” section 36(2) gives effect to a “notice of such desire”. A model for a formal notice is provided by Re 88 Berkeley Road, London NW9:

“I hereby give notice of my desire to sever the joint tenancy in equity of and in the property described in the schedule hereto now held by you and me as joint tenants both at law and in equity.”227

Case-law generally considers whether informal documents have stated the desire to sever effectively. Decisions are consistent, just, but contain fine distinctions.228 Re Draper’s Conveyance229 held that a court application by a divorcing wife under section 17 of the Married Women’s Property Act 1882 was a written notice of severance. The application was for an order for sale of the matrimonial home and division of the proceeds of sale according to the parties’ respective interests, and it had led to an order for sale230 and a declaration of the wife’s entitlement to a half interest in the property, though the property remained unsold at the husband’s death. The application occasioned severance when served on the husband.231 A second case chronologically was Nielson-Jones v. Fedden.232 On separation of a married couple, who were beneficial joint tenants, both signed a DIY memorandum233 stating as follows:

“The [husband] to use his entire discretion to sell [the matrimonial home] and employ the funds realised to his new home if it is decided to sell in order to provide a home for . . . himself . . . to live”.

This did not cause severance, so when the husband was killed in an accident, the wife became entitled, quite fortuitously, by survivorship. The memorandum dealt solely with the use by the husband of the proceeds of sale and had nothing to say about ownership. Surely this was a strange reading of the memorandum but, given that aberration, the decision is right. Finally, Harris v. Goddard234 concerned a divorce petition which invited the court to consider exercising its property adjustment jurisdiction and “that such order may be made . . . as may be just”. This spoke in general and unparticularised terms235 of the future, whereas a severance notice must take

227[1971] Ch 648, 650–651; Goodman v. Gallant [1986] Fam 106, 109B.

228Burgess v. Rawnsley [1975] Ch 429, 4448B.

229[1969] 1 Ch 486, 491G, 492E Plowman J; Burgess v. Rawnsley [1975] Ch 429, 440A; Harris v. Goddard [1983] 1 WLR 1203, 1210A, Lawton LJ, 1210G, Dillon LJ; FR Crane (1968) 32 Conv (NS) 65; PV Baker (1968) 84 LQR 462.

230On court orders: Re Wilks [1891] 3 Ch 59 (affected by LPA 1925 s 36); Burgess v. Rawnsley [1975] Ch 429, 440D, 447F; Harris v. Goddard [1983] 1 WLR 1203, 1210D, Dillon LJ; PV Baker (1968) 84 LQR 462; MJ Prichard [1975] CLJ 28; FR Crane (1974) 38 Conv (NS) 363; PV Baker (1984) 100 LQR 161.

231Harris v. Goddard [1983] 1 WLR 1203, 1210G, Dillon LJ.

232[1975] Ch 222; MJ Prichard [1975] CLJ 28.

233FR Crane (1974) 38 Conv (NS) 363.

234[1983] 1 WLR 1203, CA; PV Baker (1984) 100 LQR 161; S Coneys [1984] Conv 148; McDowell v. Hirschfield Lipson & Rumney [1992] 2 FLR 126; Hunter v. Babbage (1995) 69 P & CR 548, 556–557, 560–561.

235At 1210H, Dillon LJ.

effect immediately.236 No alteration in the shares was implied in advance of a decision by the court to exercise its property adjustment powers.

To conclude, a notice works if it is to sever immediately, but a notice to sever in the future does not. An intention to retain the property but to treat it as held in shares will sever. A notice requesting a sale will not sever, since it is possible to have a joint tenancy in the proceeds of sale, but a notice is effective if it requires both sale and division of the proceeds.

(4) No severance by unilateral declaration

[16.43] Plowman J considered in Re Draper’s Conveyance237 that an oral declaration by one of a number of joint tenants of his intention to sever operates as a severance.” A formidable array of authority against this view starts in 1740238 runs through the leading severance case, Williams v. Hensman,239 and proceeds to Walton J’s observation that no essential unity is shattered by a unilateral oral statement.240 This is supported by a rare unanimity among academics.241 So it is clear that an uncommunicated declaration or verbal notice cannot sever.242

2.Severance by unilateral disposition

[16.44] Since all four unities are essential for the continuation of a joint tenancy, destruction of any one will lead to a severance. Unilateral severance is effected by the act of one joint tenant, without the concurrence or consent of the others, and even if concealed.243 Unity of possession cannot be removed without destroying the coownership and time, once present, is present for ever.244 So an intended severance must strike at unity of title or unity of interest.245 Until 1926 there was no other means to sever, so an artificial transaction was needed by which A assigned his beneficial interest from A to T on trust for A.246

Sale of the beneficial interest of one247 joint tenant destroys the unity of title248 and so severs his share. The principle applied to sales of shares in the legal estate since the reign of Edward IV,249 now applies to beneficial shares under a trust of land.250

236At 1209B, Lawton LJ; Gore & Snell v. Carpenter (1990) 60 P & CR 456, 462.

237[1969] 1 Ch 486, 491G; Hawkesley v. May [1956] 1 QB 304, Havers J; RN Gooderson [1956] CLJ 25 (“erroneous”); Burgess v. Rawnsley [1975] Ch 429, 440C, Lord Denning MR.

238Partriche v. Powlet (1740) West t Hard 4, 26 ER 430.

239(1861) 1 John & H 546, 558, 70 ER 862, Page Wood V-C.

240Nielson-Jones v. Fedden [1975] Ch 222, 230. The other view was “wholly unwarranted” and renders s 36 otiose: at 234, 236–237.

241DJ Hayton [1976] CLJ 20, 22–23; MJ Prichard [1975] CLJ 28; FR Crane (1968) 32 Conv (NS) 65; PV Baker (1968) 84 LQR 462; PV Baker (1984) 100 LQR 161.

242Burgess v. Rawnsley [1975] Ch 429, 447C, Sir John Pennycuick.

243First National Securities v. Hegerty [1985] QB 850.

244Nielson-Jones v. Fedden [1975] Ch 222, 228F, Walton J; contrast TS Eliot in the opening lines of Burnt Norton!

245Blackstone’s Commentaries vol 2, 179.

246Self-dealing does not sever: Rye v. Rye [1962] AC 496, 514.

247As opposed to a dealing by all joint tenants: Palmer v. Rich [1897] 1 Ch 134.

248Sym’s case (1584) Cro Eliz 33, 78 ER 299; Littleton’s Tenures, [292].

249Littleton’s Tenures, [292]; Blackstone’s Commentaries vol 2, 179.

250TLATA 1996 s 3, sch 2 para 4.

Assignments of beneficial interests require writing251 though just as good is a contract for value to assign252 or a declaration of trust253 will do just as well. Lesser transactions also sever, such as leases,254 covenants to settle,255 mortgages of the beneficial interest and fraudulent mortgages. It was generally thought that a mortgage would effect a permanent severance in the same way as a sale, but two recent and persuasive articles argue that the effect is temporary and that the joint tenancy will revivify if the mortgage is discharged.256

Bankruptcy and charging orders also sever,257 as does a successful claim for family provision as a dependent of a deceased person.258

Acquisition of a larger share effects a severance. Suppose, for example that A, B and C hold as beneficial joint tenants259 when A assigns his interest to B. B holds the 1/3rd share received from A as a tenant in common but B and C remain joint tenants of the original 2/3rds share.260 Taking payment of a share in a trust fund of personalty will sever, as will an advancement of the share before vesting.261 If there are 20 houses, of which one is sold and the proceeds divided, there is a tenancy in common in the one, but a joint tenancy left in the 19.262

3.Mutual agreement for severance

[16.45] As Page-Wood V-C said simply in Williams v. Hensman, “A joint tenancy may be severed by mutual agreement.”263 When a monetary share of a trust fund was advanced to one of the eight children in the class, the others covenanting not to sue if too much had been advanced, all children participated and the entire class was severed. The agreement may be to execute mutual wills,264 to sever, or to deal with the land in a way which implies a severance,265 though not simply an agreement to sell.266

251LPA 1925 s 53(1)(c).

252Brown v. Raindle (1796) 3 Ves 256, 30 ER 998; Gould v. Kemp (1834) 2 My & K 304, 39 ER 959; Kingsford v. Ball (1852) 2 Giff App 1, 66 ER 294.

253[1994] NLJ 1698 (precedent).

254Littleton’s Tenures, [289]; Anon (1560) Dyer 187, 73 ER 412; Shelley’s case (1581) 1 Co Rep 88b, 76 ER 199; Clerk v. Clerk (1694) 2 Vern 323, 23 ER 809; Doe d Marsack v. Read (1810) 12 East 57, 104 ER 23; Cowper v. Fletcher (1865) 6 B & S 464, 122 ER 1267; Napier v. Williams [1911] 1 Ch 361.

255Caldwell v. Fellowes (1870) LR 9 Eq 410; Burnaby v. Equitable Reversionary Interest Society (1885) 28 Ch D 416; Re Hewett [1894] 1 Ch 362.

256S Nield [2001] Conv 462; BC Crown (2001) 117 LQR 477.

257See below [28.44ff].

258Gratton v. McNaughton [2001] WTLR 1305, Ch D.

259Littleton’s Tenures, [304]; Blackstone’s Commentaries vol 2, 180. But a release increases the entitlement as joint tenants: Gore & Snell v. Carpenter (1990) 60 P & CR 456.

260Doe d Hutchinson v. Prestwidge (1815) 4 M & S 178, 105 ER 800; Wiscot’s case (1599) 2 Co Rep 60b, 76 ER 555; Newman v. Edmunds (1611) 1 Bulst 113, 80 ER 809; Napier v. Williams [1911] 1 Ch 361. Merger is no longer automatic: LPA 1925 s 185.

261Williams v. Hensman (1861) 1 John & H 546, 70 ER 862; Hawkesley v. May [1956] 1 QB 304, 314, held that a request for payment was insufficient to sever, but this seems illogical.

262Leak v. Macdowall (1862) 52 Beav 28, 55 ER 11. Contrast Re Wilks [1891] 3 Ch 59 (now a severance by written notice).

263(1861) 1 John & H 546, 70 ER 862; P Luther (1995) 15 LS 219.

264Re Wilford’s Estate (1879) 11 Ch D 267; Re Heys [1914] P 192.

265Burgess v. Rawnsley [1975] Ch 429, 446B, Sir John Pennycuick.

266Nielson-Jones v. Fedden [1975] Ch 222; Mills v. Mifsud [1996] 2 CLYB 5033, CA (severance).

How should this principle be applied to informal agreements relating to land? In Burgess v. Rawnsley267 Honick agreed to buy the freehold reversion of his house from the landlord for £800. Payment of the price was shared by Honick and a friend (Mrs Rawnsley) each paying £400 and the reversion was conveyed to them as beneficial joint tenants. Honick intended to marry Mrs Rawnsley, though he had not told her.268 Her rejection of his proposal made it apparent that she just wanted the upstairs flat. Honick naturally, but improperly, turned Mrs Rawnsley out. He negotiated to buy out her interest and they settled orally on a price of £750, which under the decision of fact at first instance must be assumed to have been an oral agreement for sale, however flimsy the evidence.269 Their agreement only lasted overnight, because next day Mrs Rawnsley increased the price to £1,000. With negotiations stalled, Honick died. Mrs Rawnsley was not entitled to the whole house by survivorship because their conduct amounted to a severance. The agreement was unenforceable by action, but its existence was held to be sufficient to create a mutual severance.

Since 1989, a valid contract relating to land requires writing.270 Burgess appeared to focus on the display of intention rather than the formality position,271 so Hunter v. Babbage272 is correct in applying the earlier case to the new formality regime. After Mr Gordon Babbage’s divorce, solicitors acting for himself and his ex-wife were in desultory negotiations to settle his ex-wife’s claims for property adjustment. The house was worth £100,000 but it was proposed that she would be paid £40,000 in satisfaction of the half share. No final agreement had been reached when he died. A severance had occurred and gave rise to equal shares; the informal agreement did sever273 but was not an enforceable agreement to alter the size of the shares.

4.Course of conduct

[16.46] Williams v. Hensman recognised as a distinct274 head of severance any mutual course of dealing treating the interests as held under a tenancy in common.275 Knowledge that they were joint tenants is not essential because the relevant intention is to act as tenants in common.276 Successful case-law falls into three, non-exhaustive, groups. (1) In Nielson-Jones v. Fedden negotiations falling short of final agreement were held not to sever,277 but doubts expressed by Lord Denning suggest that this was in fact a sufficient course of conduct to effect a severance.278 A proposal or offer to

267[1975] Ch 429, CA; DJ Hayton [1976] CLJ 20; FR Crane (1975) 39 Conv (NS) 44; JF Garner (1975) 40 Conv (NS) 77; SM Bandali (1977) 41 Conv (NS) 243.

268Lord Denning MR (at 435) made play of the circumstances of their introduction.

269Browne LJ (at 443G) and Sir John Pennycuick (at 446A) found the evidence unsatisfactory; Lord Denning MR appeared to feel no doubt.

270LP (MP) A 1989 s 2.

271[1975] Ch 429, 440C, 444A–C, 446C.

272(1995) 69 P & CR 548, Ch D.

273At 557–560; query the result in Pearce v. Bulteel [1916] 2 Ch 544, 556–557.

274Burgess v. Rawnsley [1975] Ch 429, 447, Sir John Pennycuick.

275(1861) 1 John & H 546, 557, 70 ER 862 (third head).

276At 560–561.

277[1975] Ch 222, 230C–D, Walton J; MJ Prichard [1975] CLJ 28.

278Burgess v. Rawnsley [1975] Ch 429, 439D, 447A–B, Sir John Pennycuick; Hunter v. Babbage (1995) 69 P & CR 548, 560, obiter.

purchase will not sever.279 (2) Physical division of a house into two maisonettes might sever, but only280 if coupled with an intention to hold separately. (3) If property held by joint tenants begins to be used as partnership property this will sever, a principle accepted if not applied , in Barton v. Morris.281

L. PARTITION

[16.47] Unity of possession282 is necessary to support a co-ownership. Partition is a method of ending co-ownership by creating two or more single ownerships.283 Division of occupation, say of a house into two flats, will not cause a legal partition but will leave the co-ownership intact.284 Co-ownership ends when the right to share possession is removed by agreement between the parties. One title is split to form two.

Under the pre-1926 law, any legal tenant in common could insist on physical division of the land by a partition action in equity.285 The result could be ruinous. In Turner v. Morgan286 a mill had to be divided into two, leaving each part useless. How could you split chimney stacks, fireplaces, staircases, and toilets?287 In practice it was often necessary to exercise the statutory discretion to order sale instead.288

Lord Birkenhead’s reforms made partition redundant after 1925,289 since co-owned land was held on trust for sale, and the court could execute the trust by ordering sale in preference to physical division. Partition required consent, but if all adult tenants in common did agree, a statutory procedure enabled the trustees to partition.290 A similar provision for trusts of land291 allows land to be divided between beneficial tenants in common. Beneficiaries must consent to accept a particular share,292 though the court also has power to impose a partition.293 The terms may include equality money, and mortgages may either be settled or left outstanding.294 Legal title is passed to beneficiaries who are all of full age and absolutely entitled to undivided shares, but if any beneficiary is a minor the trustees must retain that share, and if a share is held in trust that share must be conveyed to the appropriate trustee.295 Partition may be excluded

279[1975] Ch 429, 446 (argument not accepted by the court?).

280Greenfield v. Greenfield (1979) 38 P & CR 570; Gore & Snell v. Carpenter (1990) 60 P & CR 456, 462.

281[1985] 1 WLR 1257; Brown v. Oakshot (1857) 24 Beav 254, 53 ER 355; Re Hulton (1890) 62 LT 200; Jackson v. Jackson (1804) 9 Ves 591, 32 ER 732, Eldon LC.

282See above [16.01].

283Blackstone’s Commentaries vol 2, 185; Megarry & Wade (6th ed), [9.098–9.100].

284Greenfield v. Greenfield (1979) 38 P & CR 570; Sanders v. McDonald [1981] CLYB 1534. Division usually requires planning permission.

285Partition at law was possible by statute (though the writ of partition was abolished in 1833), but it always occurred in equity.

286(1803) 8 Ves 143, 145, 32 ER 307, Eldon LC.

287Bailey v. Hobson (1869) LR 5 Ch App 180 (waste after partition).

288Partition Acts 1868 to 1876; Dennis v. McDonald [1982] Fam 63, 74, Purchas J at first instance; EH Bodkin (1970) 34 Conv (NS) 123; R Cocks [1982] Conv 415.

289Re Warren [1932] 1 Ch 42, 47, Maugham J; Bull v. Bull [1955] 1 QB 234, 237, Denning LJ.

290LPA 1925 s 28(3); Re Brooker [1934] Ch 610 Eve J; Re Gorringe & Braybon’s C [1934] Ch 614n; Re Thomas [1930] 1 Ch 194 (not life tenants); TA 1925 s 57 (court order).

291TLATA 1996 s 7(1). A commonhold unit must not be divided: Chold and L Ref A 2002 sch 5.

292TLATA 1996 s 7(3).

293S 14; Rodway v. Landy [2001] EWCA Civ 471, [2001] Ch 703; see below [19.06].

294TLATA 1996 s 7(4).

295S 22.

17

INFORMAL CO-OWNERSHIP

Family homes. Resulting trusts. Contribution-based constructive trusts. Other explanations for cash injections. Intention based constructive trusts. Holistic trusts. Family homes. Alternatives to common intention.

A. SHARED FAMILY HOMES

1.Trust basis

[17.01] Pettitt v. Pettitt decided in 19701 that the ownership of a family home must be based on a trust,2 this in turn depending upon what has been agreed, expressly and in writing. The principles applied to registered and unregistered land law are the same.3 In property law spouses should not be differentiated from those in any other relationship.4 The categories are contributors and those promised interests. Family law often allows the rearrangement of interests created and recognised in property law.

2.Express trusts

[17.02] Most trusts are express trusts properly evidenced in writing,5 the declaration being conclusive both of the form of beneficial co-ownership and also the quantification of the beneficial interests. This last follows the formally expressed intention: each party gets what has been promised, with no necessary relation to the financial contributions.6 Only when the judicial advice to declare the beneficial interests in writing is ignored7 is beneficial entitlement left to depend upon proof of a resulting or constructive trust.

1Pettitt v. Pettitt [1970] AC 777, 795, Lord Reid, 809–810, Lord Hodson, 817, Lord Upjohn.

2Gissing v. Gissing [1971] AC 886, 904H, Lord Diplock, 900B, Viscount Dilhorne; Burns v. Burns [1984] Ch 317, 326, Fox LJ; Grant v. Edwards [1986] Ch 638, 659G, Mustill LJ.

3Query D Wilde [1999] Conv 382.

4[1971] AC 886, 899G.

5LPA 1925 s 53(1)(b); see above [16.12ff].

6Turton v. Turton [1988] Ch 542, 546F, Nourse LJ.

7Gissing v. Gissing [1971] AC 886, 900H, Lord Diplock; Lloyds Bank v. Rosset [1991] 1 AC 107, 129C, Lord Bridge; Roy v. Roy [1996] 1 FLR 541, CA; Carlton v. Goodman [2002] EWCA Civ 545, [2002] 2 FLR 259, [44], Ward LJ.

3.Informal trusts

[17.03] Shortly after Pettitt had settled the trust basis of shared homes, Gissing8 provided the opportunity for Lord Diplock to identify a form of constructive trust based on the common intention of the parties to the purchase of property. In Lloyd’s Bank v. Rosset9 Lord Bridge subdivided constructive trusts into two categories – those quantified by contributions and those quantified by express agreement – a classification which forms the basis of the current law explained in this chapter.

B. RESULTING TRUSTS

1.Purchase in the name of another

[17.04] Resulting trusts imposed on a purchase in the name of another were already ancient when they were articulated by Eyre CB in Dyer v. Dyer (1788)10 thus:

“[T]he trust of a legal estate, whether freehold . . . or leasehold results to the man who advances the purchase-money.”

Purchase in the name of another occurs where the money to buy a property is provided by one person (B) while legal title is conveyed to another (A), so that A holds on resulting trust for B.11 Modern cases usually concern contribution to the purchase money by two or more people jointly, which creates proportionate beneficial shares,12 the pattern in Bull v. Bull,13 where a mother paid for an extension of her son’s house, and Boland,14 where Mrs Boland put in cash from the sale of a previous matrimonial home. Contribution often creates a one-trustee trust in which the beneficial interest cannot be overreached, though the principles are the same in the less troubling cases involving multiple trustees.15 Resulting trust principles also apply where two trust funds contribute to a joint purchase.16

2.Irrelevance of destination of legal title

[17.05] Equity works the same whether legal title is transferred to A alone17 or to A and B jointly. Transfer to joint names may suggest that both parties are intended to benefit equally, but beneficial entitlement is not presumed from appearance on the legal title, which may be solely to assist in management. Unmarried cohabitants

8[1971] AC 886, HL.

9[1991] 1 AC 107, HL.

10(1788) 2 Cox 92; 30 ER 42 (obiter); R Cheung, Resulting Trusts (Clarendon, 1997).

11Lloyds Bank v. Carrick [1996] 4 All ER 630, CA.

12Wray v. Steele (1814) 2 V & B 388, 35 ER 366; Gissing v. Gissing [1971] AC 886, 902E, Lord Pearson.

13[1955] 1 QB 234, CA.

14[1981] AC 487, HL; Abbey National BS v. Cann [1991] 1 AC 56, HL (mother-son); Halifax BS v. Brown [1996] 1 FLR 103, CA.

15Dyer v. Dyer as above.

16Foskett v. McKeown [2001] 1 AC 102 HL, [1998] Ch 265 CA; R Grantham & C Rickett (2000) 63 MLR 905; CE Rickett & R Grantham (2000) 116 LQR 15.

17If B pays all, equitable title will result to B: Re Share [2002] BPIR 194, Patten J.

bought a house jointly in Bernard v. Josephs18 were equal co-owners because the woman contributed half and not because she was put on the legal title.19 Unequal entitlement results from unequal contribution to the purchase price by the joint holders of the legal title.20 A transfer to joint names ought to be treated as a promise of equal beneficial entitlement unless the contrary was clearly proved.21 This one simple change would avoid much unnecessary litigation.

3.Resulting trust technique

[17.06] Capital contribution gives rise to a corresponding beneficial share under a resulting trust22:

“The fact of advancement of money as between these persons, standing in no relation to each other, . . . raises a trust in the person, vested with the interest, for the benefit of the person, who paid the money.”23

Shares are proportionate,24 and mathematical: suppose A pays £50,000 out of a price of £75,000, and the house is later sold for £300,000, then A receives £200,000. Resulting trust technique matches cash contributions to an exactly equivalent beneficial interest, without passing the facts through any conceptual filter. Beneficiaries receive what they pay for.25 Classical doctrine allowed a resulting trust only from contribution to the initial purchase, but as will be explained below constructive trusts have evolved to overcome this limitation.26 Purchase money resulting trusts arising from contribution are imposed to carry out the presumed intention of the parties, and so contrary evidence can be used to rebut the presumption and to remove the resulting trust.27 Cash injections might be explained as rent payments, loans, or gifts, and an advancement (that is a gift) might also be presumed from the fact of a close family relationship.28

C. CONTRIBUTION-BASED CONSTRUCTIVE TRUSTS

[17.07] Claims to an informal trust failed in Gissing, but Lord Diplock’s speech fashioned a “new-model” constructive trust, which provides a solid theoretical

18[1982] Ch 391, CA; JM Thomson (1982) 98 LQR 517; J Warburton [1982] Conv 444; K Gray [1983] CLJ 30; Carlton v. Goodman [2002] EWCA Civ 545, [2002] 2 FLR 259.

19At 404H–405A, Griffiths LJ; Ivin v. Blake [1995] 1 FLR 70, CA.

20Walker v. Hall [1984] FLR 126, CA; Springette v. Defoe [1992] 2 FLR 388, CA; HE Norman [1992] Conv 347; Savill v. Goodall [1993] 1 FLR 755, CA.

21Law Com WP 94 (1985), [16.5].

22Murless v. Franklin (1818) 1 Swans 13, 18, 36 ER 278, Eldon LC; Sekhon v. Alissa [1989] 2 FLR 94, 99D, Hoffmann J; Harwood v. Harwood [1991] 2 FLR 274, 292C, Slade LJ.

23Rider v. Kidder (1805) 10 Ves 360, 366, 32 ER 884, Eldon LC; The Venture [1908] P 218, CA.

24Goodman v. Gallant [1986] Fam 106, 110H, Slade LJ, citing Pettitt v. Pettitt [1970] AC 777, 813–814, Lord Upjohn.

25DJ Hayton, The Law of Trusts (Sweet & Maxwell, 1989), 145.

26Drake v. Whipp [1996] 1 FLR 826, CA (improvements).

27Re Vandervell’s T (No 2) [1974] Ch 269, 294E–F, Megarry J.

28See below [17.18ff].