Site Loader
Rock Street, San Francisco

In this essay, I will be exploring various subject areas
regarding the case of Stack v Dowden
(2007), which is one the leading cases regarding co-ownership within
property law. Cohabitant’s property rights are one of the most significant
issues a couple faces when they decide to part ways. It’s vital to know where
the beneficial interest lies between them. Prior to the case of Stack v Dowden,
there was an uncertainty of shares between unmarried couples when they decided
to separate. There are several other cases previous to this one which conveys
the issues that were once faced when couples approached the division of
property. It is important to establish where the beneficial interest lies
between them, in a way which would be as simple and as equal as possible.

I will demonstrate an understanding of how Resulting trusts and Constructive trusts are classified and
how they work in order to establish the beneficial interests of co-owners.
Trusts may be created expressly or may arise without express creation through recognition
by the courts. Resulting trusts can arise in several recognised situations in
which the court presumes that a certain transaction has given rise to a trust,
although there is no express declaration. It can also be said that a Resulting
trust arises at first in Stack v Dowden. However, due to there being no express
declaration, the case then becomes a Constructive trust.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!

order now

Express declaration
is the conveyance or transfer to the co-owners may make express provision as to
the way in which they are to hold the beneficial interest. There was no express
declaration in the case of Stack V Dowden as the transfer of the property to
the couple did not contain an express declaration of their respective
beneficial interests in their home.

There are two stages of establishing a common intention
trust of this sort. One is an agreement and the other is a detrimental act
reliance on it. It is vital that there is an agreement between parties at the
time the property is acquired so that the partner without legal estate is to
have a beneficial interest in the land. This agreement can be either express or
inferred from conduct.

Constructive trusts arise by operation rather than by the
intention of the parties, the court recognises a trust like this as being
imposed by equity upon the owner of the property. An example of Constructive
trusts can be shown in the case of Gissing
v Gissing 1971. In this case, it was held that Mr Gissing held the house
absolutely. Mrs Gissing had no beneficial interest in the property. There was
no evidence of a common intention that she was to share in the beneficial
interest of the property. Her contributions were not sufficient enough to infer
a common intention.

In the case of Lloyds
Bank v Rosset 1991 It was held that Mrs Rosset did not have an interest
in the house arising from a Constructive trust as there was insufficient
evidence that there was a common intention that she would take a share in the
beneficial interest and given that Mr Rosset had provided the whole purchase
price and cost of renovations her efforts in supervising the builders and
redecoration were insufficient.

Lord Diplock’s requirement of an express agreement suggests
that the parties must have agreed in so many words that one shouldn’t have a
share in the other property. However, as applied in later cases and reworded by
Lord Bridge in Lloyds Bank v Rosset, the requirement appears slightly less
precise “any agreement, arrangement or understanding reached between the
parties that the property is to be shared beneficially.” In order to find such
an agreement, the court requires evidence of express discussions between the

Oxley v Hiscock
2005 was also another Constructive trust case with a sole name involving
an unmarried couple and their family home similar to Stack v Dowden. The
judgement in Oxley v Hiscock was a fair division of the proceeds, 60 percent to
Hiscock and 40 percent to Oxley. The judgment was to be welcomed for its more
open approach to the role the court plays in quantifying shares and its recognition
that the court is seeking to fashion a just solution between the parties rather
than to discover their non- existent intentions. 

However, in the case of Stack v Dowden, Lady Hale rejected
this approach and expressed “The search is still for the result which reflects
what the parties must do, in the light of their conduct be taken to have
intended. It does enable the court to abandon that the search in favour of the
result which the court itself considers fair.”

Stack v Dowden is a highly significant case in at least two
respects. Firstly, it is the first case on TOLATA
1996 to have ever been decided by the House of Lords. Secondly, the
judgement is known to have laid down principles for the distribution of the
assets of cohabitees on the dissolution of a relationship.

In the case of Stack
v Dowden, the parties were cohabitees registered as joint tenants of the
legal estate but made no declaration as to the entitlement of the beneficial
interest in the property. Mrs Dowden contributed more costs towards the
property than Mr Stack. They both had separate bank accounts and made separate
investments. The parties both separated and Mr Stack then obtained a court
order that the house should be sold and the proceeds divided equally between
himself and his former partner. However, Mrs Dowden appealed against this
decision claiming that she was entitled to a greater share due to the larger
contribution she put towards the property. The Court of Appeal held that she
was entitled to a 65 percent share, so Mr Stack appealed from this decision to
the House of Lords.

It was held that the starting point for determining
beneficial interests where the legal title was held jointly is that beneficial
interest will also be held jointly. This presumption may be displaced where
there is evidence that this was not their intention.

This case provided leadership as to how the courts deal with
a sole legal owner. However, this case included legal ownership being in joint
names. As Lady Hale mentioned, the initial principle is that equity follows
law, the beneficial interests reflect the legal interests in the property,
meaning that Mr Stack and Mrs Dowden who held the legal estate together as
joint tenants raised a presumption that they were also joint tenants of the
beneficial interest.

When land is owned by one or more persons, ownership must be
through a trust of land, this separates the legal title of the land from the
equitable ownership rights. Trustees hold the legal ownership which must be
named on paper. The trustees hold the land on trust for the beneficiaries. For
example, those who may be entitled to equitable ownership rights. The trustees
and beneficiaries are often the same people. The two forms of co-ownership are
Joint Tenants and Tenancy in common.

Joint tenants are together classed as owning the whole
interest, the individual owner is not entitled to a specific share, and when he
dies, ownership remains with the survivors under the rights of survivorship.
Whereas, tenants in common are entitled to estimated individual shares in the
property, which they can transfer during their life and which pass with their
estates on death.

A Tenancy in common of the beneficial interest may come into
existence in the following ways. Under an equitable presumption, that purchasers
who make unequal contributions to the purchase price intend to hold as tenants
in common. By an express declaration of the intention to hold as tenants in
common which should be made by the purchasers at the time of the acquisition.
By a severance, a joint tenancy of the beneficial interest can be turned into a
tenancy in common by severance.

In the case of Laskar
v Laskar 2008, Lord Neuberger considers in his judgment whether the
presumption of beneficial interest following legal interests set out in Stack v
Dowden applies to this case. He decided that it wouldn’t be right to apply the
case of Stack v Dowden as the property had not been purchased as a home but
rather as an investment. He also mentioned that, had Stack v Dowden been
applied, he would have found the presumption has been rebutted on the facts.

For the facts of this case, and the decision of the Court of
Appeal that the presumption of beneficial joint tenancy did not apply to the
property bought as an investment. Lord Neuberger identified the following
aspects of the parties conduct which, if the presumption had applied, it might
have operated to rebut it as the financial affairs were kept separate, the
mother had several other children and there was no reason to think that she
intended her daughter to receive a significant gift not shared with the other
children, the parties contributions to the purchase price were significantly
different and the daughter became a co-purchaser primarily because the mother
could not afford the purchase on her own.

The case of Jones v
Kernott 2011 which came a few years after Stack v Dowden, is a case that
was similar to one another. Both these cases concerned disputes between former
cohabitants about the nature of their beneficial interests in the family homes
held in their joint names. In Jones v Kernott it was held that while the
interests of the parties at the outset might well have been that the property
should be split jointly, those intentions had altered significantly over the

He considered that the correct test was therefore what was
“fair and just” between the parties, taking into account the whole
course of dealing with them. He concluded, taking into account Mr Kernott’s
ceasing to pay any bills, the fact that Ms Jones contributed over 80% of the
equity, and the lack of assistance provided by Mr Kernott relating to the
maintenance of the children, that the correct split would be 90:10 in favour of
Ms Jones.

In Stack v Dowden, their Lordships accepted the parties’
intentions about the ownership of the family home might change during the
course of their relationship, Lady Hale noting that in some cases there might
be a reason to conclude that: “whatever the parties’ intentions at the outset,
these have now changed. An example might be where one party has financed (or
constructed himself) an extension or substantial improvement to the property so
that what they have now is significantly different from what they had then.”

The question of changed intentions, arising not from
improvements to the property but from the events occurring after the parties
had separated, was considered in more detail by the Supreme Court in Jones v
Kernott. The court was satisfied that a change of intention about the parties’
beneficial interests could be inferred from the factors identified by the trial
judge and that his decision as to the size of each share was correct. The
court’s decision also confirms the view expressed in Stack v Dowden that the
intentions of parties to a common-intention trust can exchange during the life
of the trust, and establishes that such a change of intention can rebut the
Stack v Dowden presumption that a conveyance of a family home into joint names
indicates both a legal and beneficial joint tenancy and can also result in a
change in the size of the share in the property to which each party is

In cases of legal co-ownership, there appears to be general
acceptance and application of the Stack and Jones principles of presumed
beneficial tenancy and extended range of conduct from which intentions may be

To establish a claim in the beneficial interest, there has
been considerable uncertainty about the effect that Stack v Dowden and Jones v
Kernott have on the first stage of the sole name process. It would, however, be
possible for the court to distinguish Stack v Dowden from any sole name case
which might come before it, and continue to apply the more restrictive
approach. In the joint name case of Stack v Dowden, the House of Lords was not
required to infer the common intention necessary to establish an implied trust,
since both parties already have beneficial interest in the property under the
statutory trust imposed on legal co-owners. Their Lordships were concerned only
with the parties’ intentions about the nature of that beneficial interest and,
if relevant, the size of their respective shares in it.

The Cohabitees Bill
is an essential source in this subject which provides a financial settlement
order that can be made if the court is satisfied either that the respondent to
the application has reserved a benefit, or that the applicant has suffered an
economic disadvantage, as a result of “qualifying contributions” the applicant
has made. The qualifying contribution is any financial or other contribution
that was made by the applicant to the parties shared lives or to the welfare of
their families during their cohabitation. The court must take into account many
factors before deciding whether or not to make a financial settlement. The main
factors that must be taken into account are income and financial needs of both

After reviewing many cases before and after
Stack v Dowden, it can be said that this case has been one of the most
influential as the judgements from previous cases that I have mentioned in this
essay, determined the outcome of Stack v Dowden. Principles in Stack were
adopted in cases that came subsequently after it such as, Laskar v Laskar and
Jones v Kernott. Having analysed the case of Stack in depth, it is fair to say
that the case did lead to greater certainty and simplicity due to the
principles that were adopted in the case. It can be said that judgements for
similar cases are now easier to determine now that previous c

Post Author: admin


I'm Eunice!

Would you like to get a custom essay? How about receiving a customized one?

Check it out