Stack v Dowden

JurisdictionUK Non-devolved
CourtHouse of Lords
JudgeLORD WALKER OF GESTINGTHORPE,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND
Judgment Date25 April 2007
Neutral Citation[2007] UKHL 17

[2007] UKHL 17

HOUSE OF LORDS

Appellate Committee

Lord Hoffmann

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Neuberger of Abbotsbury

Stack
(Appellant)
and
Dowden
(Respondent)

Appellants:

Lucy Theis QC

Francis Wilkinson

Miriam Shalom

(Instructed by Attiyah Lone)

Respondents:

Christopher Lundie

Emily Saunderson

(Instructed by Walter Jennings & Son)

LORD HOFFMANN

My Lords,

1

I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond, and for the reasons she gives I too would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

2

As my noble and learned friend Baroness Hale of Richmond whose speech I have had the privilege of reading in draft indicates, this case is about the property rights of a cohabiting couple in a house which they occupied together as their home until the breakdown of their relationship. They have an obvious interest in the determination of their respective property rights in such a valuable asset. But the issue between them is a matter of general public interest too. It has become an increasingly pressing social problem, as house prices rise and more and more people are living together without getting married or entering into a civil partnership. The situation is complicated by the fact that there is no single, or paradigm, set of circumstances. The only feature which these cases have in common is that the problem has not been solved by legislation. The legislation which enables the court to reallocate beneficial interests in the home and other assets following a divorce does not apply to cohabiting couples. Otherwise the circumstances which define relationships between cohabiting couples and their property interests are infinitely various.

3

The key to simplifying the law in this area lies in the identification of the correct starting point. Each case will, of course, turn on its own facts. But law can, and should, provide the right framework. Traditionally, English law has always distinguished between legal ownership in land and its beneficial ownership. The trusts under which the land is held will determine the extent of each party's beneficial ownership. Where the parties have dealt with each other at arms length it makes sense to start from the position that there is a resulting trust according to how much each party contributed. Then there is the question whether the trust is truly a constructive trust. This may be helpful in their case but in others may seem to be a distinctly academic exercise, as my noble and learned friend Lord Walker of Gestingthorpe points out. But cohabiting couples are in a different kind of relationship. The place where they live together is their home. Living together is an exercise in give and take, mutual co-operation and compromise. Who pays for what in regard to the home has to be seen in the wider context of their overall relationship. A more practical, down-to-earth, fact-based approach is called for in their case. The framework which the law provides should be simple, and it should be accessible.

4

The cases can be broken down into those where there is a single legal ownership and those where there is joint legal ownership. There must be consistency of approach between these two cases a point to which my noble and learned friend Lord Neuberger of Abbotsbury has drawn our attention. I think that consistency is to be found by deciding where the onus lies if a party wishes to show that the beneficial ownership is different from the legal ownership. I agree with Baroness Hale that this is achieved by taking sole beneficial ownership as the starting point in the first case and by taking joint beneficial ownership as the starting point in the other. In this context joint beneficial ownership means that the shares are presumed to be divided between the beneficial owners equally. So in a case of sole legal ownership the onus is on the party who wishes to show that he has any beneficial interest at all, and if so what that interest is. In a case of joint legal ownership it is on the party who wishes to show that the beneficial interests are divided other than equally.

5

The advantage of this approach is that everyone will know where they stand with regard to the property when they enter into their relationship. Parties are, of course, free to enter into whatever bargain they wish and, so long as it is clearly expressed and can be proved, the court will give effect to it. But for the rest the state of the legal title will determine the right starting point. The onus is then on the party who contends that the beneficial interests are divided between them otherwise than as the title shows to demonstrate this on the facts.

6

It is worth noting how the solution which Baroness Hale proposes fits in with how the problem would be addressed in Scotland: had the dwelling which the parties purchased in joint names in 1993 been situated in, say, Eyemouth – a few miles north of Berwick-upon-Tweed. The social problems under which cohabiting couples live together in England and Wales are, in general, no different from those that exist in Scotland. Can it be said that the problem would be solved in much the same way both north and south of the border? I think that it can. The law of property in Scotland is, of course, different and so also are Scots family law and the Scots law of obligations. But in the case of cohabiting couples the facts would be examined from a similar starting point.

7

Scots family law does not provide the answer to how the value of the home of a cohabiting couple is to be divided between them when their relationship terminates. Section 27(3) of the Family Law (Scotland) Act 2006 excludes a residence used by cohabitants as the sole or main residence in which they live (or lived) together from the general rule which that section lays down that, subject to any agreement between them to the contrary, money derived from any allowance made by either cohabitant for their joint household expenses or for similar purposes or any property acquired out of such money is to be treated as belonging to each cohabitant in equal shares. So the solution in their case must, in the first instance, be found in Scots property law. Except in cases where it can be shown that a title was held in trust although it is ex facie absolute, Scots property law does not distinguish between the legal and the beneficial interests in heritable property.

8

Where the title to a dwelling house is taken in one name only, the presumption is that there is sole ownership in the named proprietor. Where it is taken in joint names those named are common owners and, if the grant does not indicate otherwise, there is a presumption of equality of shares: Kenneth G C Reid, The Law of Property in Scotlandr (1996), para 22. The rights that are thus divided from the outset between those named in the title in the Land Register are rights of ownership. There are no intervening equitable interests. The presumption that the common owners are entitled to share the value of the property equally is however capable of being displaced by evidence to the contrary. The analysis now moves from the law of property to the law of obligations. This opens the door to evidence of an agreement that the title was to be held in trust or to an examination of the contributions which each party made to the purchase of the house and to its upkeep and improvement during their relationship: Galloway v Galloway, 1929 SC 160; Wissenbruch v Wissenbruch, 1961 SC 340; Denvir v Denvir, 1969 SLT 301. Proof of these matters has been made easier by the abolition of the requirement of proof by writ or oath by section 11 of the Requirements of Writing (Scotland) Act 1995. But cases where this exercise is attempted are rare, in view of the weight that is attached to the state of the title as evidence of the beneficial ownership of the property.

9

More recently resort has been had to restitutionary remedies. In McKenzie v Nutter, 2007 SLT (Sh Ct) 17 the title was taken in joint names. The intention of the cohabiting couple was that they would live together as a couple in the property, and that they would both sell their own separate houses and apply the proceeds towards the purchase of their new home. In the event only one party contributed the proceeds of his house towards its purchase and paid the costs associated with maintaining and improving the property. The other party continued to reside in her own house, which due to her bad faith she did not sell. She then insisted on a division and sale of the property. Following the state of the title, the expectation was that when the property was sold the proceeds would be paid to the parties equally. But an order was made that the party who had contributed everything towards its purchase and upkeep was to be entitled to recover the other party's share of the proceeds. As Sheriff Principal Lockhart explained in his judgment, this was on the ground that she had been unjustly enriched because the condition on which the enrichment was given, due to her bad faith, did not materialise.

10

The law of unjust enrichment has also been invoked where the title was taken in the name of one of the co-habitants only and they subsequently separated. It was held that the other co-habitant was entitled to the return of sums which he contributed to the purchase of the house and its refurbishment while the parties were living there: Satchwell v McIntosh, 2006 SLT (Sh Ct) 117. The problems which these very unusual cases create are for the most part problems of fact. The law that is to be applied, now that the former restrictions on the mode of proof have been abolished, is relatively uncomplicated.

11

In a case such as this, where the parties...

To continue reading

Request your trial
686 cases
  • M.C v B.S
    • Ireland
    • High Court
    • 17 June 2008
    ...ESTATE, IN RE 1920 1 IR 207 FAMILY LAW ACT 1995 S36 SOAR v FOSTER 1858 4 K & J 152 70 ER 64 DUNBAR v DUNBAR 1909 2 CH 639 STACK v DOWDEN 2007 2 WLR 831 2007 2 AC 432 2007 2 AER 929 FAMILY HOME PROTECTION ACT 1976 W v W 1981 ILRM 202 1981/8/1344 F (R) v F (M) 1995 2 ILRM 572 1985/8/2121 O'C......
  • Re Barcham (a bankrupt)
    • United Kingdom
    • Chancery Division
    • 4 July 2008
    ...he referred to Byford v Butler [2003] EWHC 1267 (Ch); 1 FLR 56 (a decision of Lawrence Collins J), the decision of the House of Lords in Stack v Dowden [2007] UKHL 17; [2007] 2 WLR 831, Murphy v Gooch [2007] EWCA Civ 603, [2007] BPIR 1123 (a decision of the Court of Appeal), and sections 1......
  • Laskar v Laskar
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 February 2008
    ...in turn. The presumption of joint ownership 15 The appellant contends that the reasoning of the majority of the House of Lords in Stack v Dowden [2007] UKHL 17 [2007] AC 432 compels a finding in the present case that the beneficial ownership of the property was held in equal shares by the p......
  • R v Hayes
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 28 March 2018
    ...that any great assistance for present purposes is derived from cases cited to us relating to proprietary or equitable interests such as Stack v Dowden [2007] UKHL 17, [2007] AC 432 and Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776. The position considered in those cases was different from......
  • Request a trial to view additional results
13 firm's commentaries
  • "It's My House Not Yours": Separating Unmarried Couples, And The Houses They Own ' The Legal Framework
    • United Kingdom
    • Mondaq UK
    • 24 May 2022
    ...property legally as joint tenants but the equitable ownership is not expressly set out Common intention constructive trust Stack v Dowden [2007] UKHL 17, is the key case setting out what happens to property which is legally jointly owned by couples who then separate. In Stack v Dowden an un......
  • Do You Have You Be Ousted To Succeed In A Claim For Occupation Rent? Bailey v Dixon [2021] EWHC 2971 (QB)
    • United Kingdom
    • Mondaq UK
    • 10 February 2022
    ...law and that the appeal sought to overturn factual findings made on the evidence by the Recorder. The Legal Framework In Stack v Dowden [2007] UKHL 17, one of the issues under consideration concerned the principles to be adopted on the taking of accounts between co-owners and in determining......
  • Do You Have You Be Ousted To Succeed In A Claim For Occupation Rent? Bailey v Dixon [2021] EWHC 2971 (QB)
    • United Kingdom
    • Mondaq UK
    • 10 February 2022
    ...law and that the appeal sought to overturn factual findings made on the evidence by the Recorder. The Legal Framework In Stack v Dowden [2007] UKHL 17, one of the issues under consideration concerned the principles to be adopted on the taking of accounts between co-owners and in determining......
  • Weekly Tax Update - Monday 21 November 2011
    • United Kingdom
    • Mondaq United Kingdom
    • 24 November 2011
    ...that the interest should be divided equally. The Supreme Court clarified the approach taken in the previous case of Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 and in the leading judgement by Lord Walker and Lady Hale set out the principles applicable in a case such as this, where a fami......
  • Request a trial to view additional results
16 books & journal articles
  • RESULTING TRUSTS IN SINGAPORE
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2011, December 2011
    • 1 December 2011
    ...* The author gratefully acknowledges excellent assistance from J Z Chng. 1 [2007] 1 SLR(R) 795. 2 [2007] 2 SLR(R) 108. 3 Stack v Dowden [2007] 2 AC 432; Abbott v Abbott [2008] 1 FLR 1451. 4 [1996] AC 669 at 708. 5 [1999] 1 WLR 1399 at 1412. 6 Peter Birks, “Restitution and Resulting Trusts” ......
  • Restitution
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2013, December 2013
    • 1 December 2013
    ...point of analysis for domestic consumer cases, supplanting it with a modified common intention constructive trust: Stack v Dowden[2007] 2 WLR 831 and Jones v Kernott[2011] 3 WLR 1121. It remains to be seen whether Singapore law will follow suit. Choo J's apparent sympathy towards adoption n......
  • Case Note
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2015, December 2015
    • 1 December 2015
    ...SLR 1048. 3 The judgment also happened to be V K Rajah JA's last judgment before he assumed the post of Attorney-General of Singapore. 4 [2007] 2 AC 432. 5 Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 at [154]. 6 [2008] 2 SLR(R) 108. 7 Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 at [43......
  • THE DEVELOPMENT OF SINGAPORE LAW: A BICENTENNIAL RETROSPECTIVE1
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2020, December 2020
    • 1 December 2020
    ...“Profits Obtained in Breach of Fiduciary Duty: Personal and Proprietary Claim?” (2011) 70(3) Camb LJ 502. 215 [2014] 3 SLR 1048. 216 [2007] 2 AC 432. 217 Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 at [127]. 218 Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 at [132]. 219 Chan Yuen Lan v......
  • Request a trial to view additional results
3 forms
  • Chapter CG65415
    • United Kingdom
    • Formularios de Derecho Civil, Mercantil y Registral HMRC Guidance manuals
    • Invalid date
    ...can be rebutted by evidence that Mr A intended to make a gift to Mr B. Following the House of Lords decision in Stack v Dowden [2007] UKHL 17 the presumption of resulting trust has little application to domestic property. In paragraph 31 of Lord Walker’s opinion he In a case about beneficia......
  • Chapter TSEM9710
    • United Kingdom
    • Formularios de Derecho Civil, Mercantil y Registral HMRC Guidance manuals
    • Invalid date
    ...If taxpayers attempt to rely on the decisions in the cases of Oxley v Hiscock [2004] 3 All ER 703) (sole legal title) or Stack v Dowden [2007] UKHL 17) (joint legal title), you should point out that those cases relate specifically to the ownership of the matrimonial or quasi-matrimonial hom......
  • Chapter TSEM9140
    • United Kingdom
    • Formularios de Derecho Civil, Mercantil y Registral HMRC Guidance manuals
    • Invalid date
    ...is that the legal owner is presumed to be the beneficial owner unless there is evidence to the contrary. In the case of Stack v Dowden [2007] 2 All ER 929, Baroness Hale of Richmond, who gave the leading judgment, commented on the general principle that ‘The onus is upon the person seeking ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT