(a)
This is a single ownership case: Alana is the registered proprietor of Tumbledown living
there with Benji. The first issue here is whether Benji has an interest in Tumbledown. The
starting point is that equity follows the law, which would presume that, since Alana is the
legal owner, she would also hold the land solely in equity. However, Benji can disturb that
presumption by demonstrating a common intention that the property is to be held in shares
in equity, and that he acted on this intention.
This common intention, according to Lord Bridge in Lloyds Bank v Rosset, involves “any
agreement, arrangement or understanding reached between them that the property is to be
shared beneficially” before acquisition or exceptionally at a later time, which is “based on
evidence of express discussions”. While express discussions took place between Alana and
her parents that Benji should not be entitled to Tumbledown, more facts are needed as to
whether Benji was made aware of this. He did recognise Alana as the legal owner when
buying the field later, and one could argue that Alana’s parents used an excuse by insisting
he was not entitled to the property because he was unemployed and on welfare since their
stance held despite Benji’s later employment, which could constitute an inferred express
common intention. However, based on the existing facts, no express discussions took place
between Alana and Benji.
One must, therefore, look to infer a common intention which can be ambulatory in nature,
said again by Lord Bridge in Rosset to be “the court relying entirely on the conduct of the
parties”. He also added that “direct contributions to the purchase price” would readily infer
a common intention to create a constructive trust. While Benji’s one-off payment of the
conveyancing bill initially would not constitute adequate contribution based on its
insignificance against the total cost of Tumbledown – considered as Lord Bridge said de
minimis – his direct contributions through paying the mortgage during the pandemic as well
as contributing to paying the bills during Alana’s pregnancy would likely infer a common
intention. Benji’s separate bank account when paying the mortgage could represent a
different common intention, as it did in Stack v Dowden, but more facts about how Alana
and Benji’s finances are kept would be needed to substantiate this. Hence, the acts
establishing the inference, which in this case are primarily the mortgage payments, would
also constitute the detriment required to establish Benji’s interest.
In Lloyds Bank v Rosset, Mr Rosset was given money by family who insisted that he became
the sole proprietor of the property similar to Alana. However, what distinguishes the two is
that, in Rosset, Mrs Rosset who, like Benji, had to establish an interest in the property, made
no financial contributions towards it, while Benji paid a percentage of the mortgage. Even in
Burns v Burns, Ms Burns did not contribute to the purchase price like Benji did, despite
paying household bills, which meant she was not entitled to the property either. Therefore,
this act can be seen as crucial in determining his interest. Lord Walker’s criticism of this
requirement in Stack v Dowden as “potentially productive of injustice” – coupled with
Lawson’s critique that women had to do “much more than the judges would expect a
, woman to do” to establish an interest – could indicate a future shift towards a diminished
significance of direct contributions to the purchase price. But, for now, it could be seen as
fulfilling land law’s wider purpose of transactional security through establishing objectivity in
contributions.
One could argue that Benji only paid the mortgage for under a year despite living in the
property for over a decade. However, any significant payment towards the purchase price –
according to the doctrine of precedent – seems sufficient to establish an interest; and paying
the mortgage over this prolonged period while the legal owner was financially unable to
should meet this criteria. Should a court take the view that Benji’s mortgage payments were
insufficient to establish an interest, the extent of his indirect contributions of home
repair/maintenance should also be considered as they were necessary for Alana to continue
working at the time; although in Burns v Burns this alone was not enough. Nevertheless,
based on existing facts, Benji should have an interest in Tumbledown and a constructive
trust would be present in which Alana is holding the land on trust for Benji.
