TOLATA: Non-legal owners and beneficial interests

The presumption is commonly invoked in TOLATA claims that joint legal owners of a property equally share beneficial ownership, and a sole legal owner has entire beneficial ownership.

It is well established that, in a joint legal owner case, the burden of displacing the presumption is a “heavy” one, which will only be overturned in “exceptional” cases.

But what of the burden in single name cases?

In Kanval v. Kanval [2021] EWHC 853 (transcript here) the court proceeded on the basis that the burden in single name cases was also a heavy one, stating at para 20: “see Stack v. Dowden per Lord Walker at [33] and per Lady Hale at [68]; see too Jones v. Kernott per Lord Collins at [60]”.

But do those paragraphs support that conclusion? Certainly, in neither Stack nor Jones  did the court explicitly state the weight of the burden in single name cases.

Indeed, in paragraph 68 of Stack Lady Hale appeared expressly to confine her remarks to joint name cases, stating:

“In joint names cases [the process of trying to show legal and beneficial interests differ] is also unlikely to lead to a different result unless the facts are very unusual….”

Is there nevertheless a good reason for the presumption to be equally strong in single name cases? 

Such presumptions are, per Lord Dipock in Pettitt  v. Pettitt [1970] AC 777, HL, “no more than a consensus of judicial opinion disclosed by reported cases as being the most likely inference of fact to be drawn in the absence of any evidence to the contrary”.

In Jones (at para 60) the rationale for the presumption was stated to be “because it will almost always have been a conscious decision to put the property into joint names, and committing oneself to spend large sums of money on a place to live is not normally done by accident or without giving it thought”. To that may be added Lord Walker’s view (para 33 of Stack) that joint legal owners were unlikely to intend to “keep a sort of balance-sheet of contributions”.

Do these observations about human behaviour justify an equally strong presumption in single-name cases?

Certainly, purchasing a property is normally an important decision, whether that property be purchased in joint names or in a single name.

The fact that a property has been put in joint names also, of course, indicates agreement: an agreement between two or more people to record joint legal ownership. But if a property is registered in one name, what agreements can that be said to indicate? Does it usually mean the registered owner has not agreed to share beneficial ownership with anybody else? Put differently, if two people have a common intention to share beneficial ownership, can it usually be presumed that both would be registered as (joint) legal owners? 

These presumptions seem to me to be too general to carry much weight across the wide variety of single name cases which come before mediators and the courts.

Equally, Lord Walker’s “balance-sheet of contributions” does not easily transpose into single name scenarios. One does not have to keep a balance sheet in order to have a common intention that beneficial ownership be shared.

Lord Bridge’s statement in Lloyds Bank v Rosset [1990] UKHL 14 that, absent express agreement, contributions to the purchase price are necessary in order for non-legal owners to establish the necessary “common intention” to share beneficial ownership, has traditionally proved problematic for non-legal owners. Arguably, despite criticism in Stack (and subsequently), it remains good law and a potential hurdle to non-legal owners.

However, the recent case of Amin v. Amin [2020] EWHC 2675 (transcript here) marks a further distancing of the Courts from Rosset. In that case Nugee LJ stated (at para 32) that the same factors were relevant in working out common intention  as to beneficial ownership, whether in a joint or in a single name case:

“it seems to me that the exercise that Lord Walker and Lady Hale envisaged is similar in a sole name case to that in a joint names case. In each case what needs to be found to displace the presumption that equity follows the law is a common intention that the beneficial ownership should be something different from the legal ownership; and (save for the case where there is evidence of express discussions as referred to by Lord Bridge in Lloyds Bank v Rosset) that is to be deduced objectively from their conduct”

The end result may be that, in single names cases it is easier to displace the presumption that equity follows the law. 

Toby Huggins has a broad-based chancery practice and specialises in TOLATA claims.