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PROPERTYLAND LAW

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The law is significant in the society as it helps to maintain orderand settle any form of disputes that arise. It can be amendment basedon the changes occurring in the world so that it remains relevant andeffective in its application. Legislations are made through a processthat is outlined in the UK constitution that involves the proposal ofa new bill in the House of Parliament, which when passed it ispresented to the Queen for Royal Assent to be considered as an Act ofParliament. However, judges in the Supreme Courts and the Court ofAppeal can also make binding laws through applying the principle ofstare decisis (stand by the decision) through providing theratio decidendi (reasons for standing by the decision). Judgesin the lower courts have to make their rulings in similar cases basedon the judicial precedents developed by the senior judges. Thejudgment of Stack v Dowden [2007] UKHL 17 is one such casethat has drawn up a new framework for handling disputes regardingcohabitant’s rights when the unmarried couple is facing a breakdownof their relationship. The paper seeks to assess critically how thecase of Stack v Dowden has affected case laws before thedevelopment of the case and afterward. It shall begin by providingthe facts of the case and then discussing how it has influenced othercases before and after it.

The defendant, Mr. Stack was self-employed while the plaintiff, Ms.Dowden was an electrical engineer. The two began cohabiting in 1975during which Ms. Dowden bought a house solely in 1983 using cash thatshe obtained from a mortgage in her name. They lived in the housewith her partner and children. The plaintiff earned more money thanthe partner and thus, got to pay for all the mortgage installmentsand other expenses. The parties later sold that house and bought areplacement home, which they registered in both their names under theLand Registry Form. Ms. Dowden had contributed 65% towards thepurchase that was inclusive of the sale of the home and that of herearlier property. The remaining amount needed was obtained from amortgage loan that the two parties received under joint names andanother in Ms. Dowden’s name. Regarding the repayment of theacquired loans, Mr. Stack paid the mortgage under their names whilethe plaintiff paid the premiums of the endowment policy under hername. The parties did not have joined bank accounts or savings andinvestments. In 2002, their relationship ended, and they obtained acourt order in which they agreed that Mr. Stack should stay away fromthe house while Ms. Dowden was responsible for the cost ofaccommodation for the defendant. Mr. Stack then ordered the sale ofthe house, and since the couple was basic tenants as per the trust,the proceeds of the sale should be distributed equally. The HighCourt ruled that each party held equal shares to the property.However, Ms. Dowden appealed, and the Court of Appeal reversed theHigh Court’s decision. Lord Hoffman said, “I have had theadvantage of reading in draft the opinion of my noble and learnedfriend Baroness Hale of Richmond, and for the reasons she gives, andI too would dismiss the appeal.” 1The appellant court agreed that the beneficial interest was to splitin the ratio of 65:35.

One of the effects of the Stack v Dowden’s case is that itoverhauled the laws relating to Constructive Trusts. Section 53 ofthe Law Property Act 1925 [2]defines constructive trusts as those where the trustee is induced toact to the detriment of the belief that their action would enablethem to obtain a beneficial interest in the land that is impliedtrust if the owners of the property did not declare a trust. However,for the trustee to qualify under the constructive trust there mustbe inducement either through express agreement or inferred agreement(contribution towards the acquisition of the property). Therefore, ananalysis of the facts in the case of Stack v Dowden, indicatethat when they bought the family home, they failed to mention in theLand Registry Form their ownership shares. In the light of case lawdecided before it, the courts would have presumed as under theinferred agreement of constructive trusts that both parties heldequal shares of the home. A distinction is also made where theproperty is in joint names. The law provided that where there iscommon legal ownership, then there is a high likelihood of jointbeneficial ownership unless there is evidence to suggest that thebeneficial ownership is contrary to the legal ownership. The caseaffected the constructive trusts laws by introducing a new elementthat was applicable primarily to cohabiting couples. In the opinionsof the Lords in the appeal case, Lady Baroness Hale held that“whether the declaration (one way or the other) is some indicationof what the parties did intend is another matter, to which I mustreturn.”3Her opinion suggests that the presumption of joint legal ownershipimplied equal beneficial interest could be displaced when there isevidence of no such intent. The judge stated that when people arecohabiting, it is essential not to assume that their actions ofnatural love and affection would have led to marriage. Mr. Stack andMs. Dowden had lived together for almost 18years where they got tosire four children. Despite residing in the same house, they madeseparate investments and maintained individual bank accounts. Theiractions implied that they did not intend to have an equal beneficialinterest which allows Ms. Dowden to demand 65% share of the house.

Stack v Dowden also affected the application of the lawsrelating to resulting trust. Under Section 60 (3) of the PropertyAct, 1925 states that “the resulting trusts shall not be impliedmerely by reason that the property is not expressed to be conveyedfor the use or benefit of the grantee.”4The presumption applies where the parties contributed to the purchaseprice. Before the Stack v Dowden case, the contribution of thebuying price provided an implied assumption that the beneficiariesshall obtain an equitable ownership of the house. For instance, inthe case of Gissing v Gissing [1970] UKHL 3, the couple haddivorced after being married for thirty-one years. Mr. Gissing hadsolely contributed to the purchase of their matrimonial home througha mortgage, a personal loan, and his cash. The wife had onlycontributed towards the acquisition of the furniture and laying alawn. Although Mrs. Gissing claimed to have a beneficial interest inthe house, the court held that “the wife had no beneficial interestin the property. There was a lack of evidence of a common intentionthat she was to share in the beneficial interest of the house.”5However, after the case of Stack v Dowden, a new legalprecedent was developed under the presumed resulting trust. Unlike inthe past where the proportion of contribution was relevant, theSupreme Court argued that under joint legal ownership, the cohabitingcouple intended to have equity in shares, and thus, the amount giventowards acquiring the family home such as direct contribution ormortgage payments shall be irrelevant.

Cases that involve sole legal ownership are based on the presumptionthat the legal owner is the sole beneficiary. It is evident that theStack v Dowden case is not related to sole legal ownership.However, the outcomes of the case have affected rulings on similardisputes since judges are applying them as guidance on the approachthe court can take in such situations. An analysis of individualproperty cases indicates that it was not clear whether the claimantcan use inferred conduct to prove to the jury that they possess somebeneficial interest in the absence of an express agreement. In theStack v Dowden case, Lord Walker referred to Lord JusticeChadwick’s ruling on the Oxley v Hiscox [2004] EWCA Civ 546where the plaintiff claimed half of the house proceedings. Ananalysis of the Oxley v Hiscox dispute shows that Oxley andHiscox had bought a house together where the plaintiff contributed28% and the defendant 48%.6Besides, the expenses, home renovations, maintenance and mortgagepayments was a combined effort of the two. The reference to the Oxleyv Hiscox was to point out that when one makes any form ofcontributions towards the acquisition of property, the input shallconstitute as crucial factors in determining the share of theclaimant. Lady Hale also referenced the case in reflection to thecourt’s role in the case. She stated that the thoughts expressed bythe Law Commission apply to the case in that, “it emphasizes thatthe search is still for the result which reflects what the partiesmust, in the light of their conduct, be taken to have intended.”7Therefore, based on the ruling of the Stack v Dowden, solelegal ownership cases have adopted the approach of establishingwhether a non-legal owner has a beneficial interest through expressagreement or inferred conduct such as direct contribution or helpingwith the household expenses. If the claimant is discovered to have abeneficial interest, the court has a responsibility of determiningthe percentage of share to avoid the presumption of equity inownership as in the previous cases. Though, it is not guaranteed thatthe judges shall make their decision based on the contribution of theparties.

The case also impacted the conditions under which a presumption isrebutted. One of the principles of the legal system is to exercisejustice in all its undertakings. Before the development of the Stackv Dowden case, judges based their rulings on what they consideredbeing fair. For instance, in the Oxley v Hiscox, Lord JusticeChadwick said that the answer in such a case is, “…each isentitled to that share which the court considers fair having regardto the whole course of dealing between them in relation to theproperty.”8On the other hand, the Law Commission had recommended the judiciaryto conduct a thorough survey of the dealings of the parties involvedin a dispute so that the judge can have adequate resources to basetheir decision. It was proving difficult for the Appellant judges todetermine which criterion to follow in making their ruling regardingthe rebutting of the presumption. Thus, Lord Walker is believed tohave provided a clear direction for other judges when he said in hisspeech that, “…the notion that proprietary estoppel and “commoninterest” constructive trusts can or should be completelyassimilated. Proprietary estoppel typically consists of asserting anequitable claim against the ‘true’ owner. The claim is a ‘mereequity.’9His contribution allowed future law practitioners to apply bothconstructive trusts and proprietary estoppel in cases involvingcohabitation so that the court can implement both criterion andfairness in their process.

The parties participating in the purchase of a property tend to havetheir beneficial interest. The law understands that the interests maychange among the individuals over time, which may create the need forthem to make alterations. Before the case of Stack v Dowden, theaffected parties would change their beneficial interests by applyingsection 53(1) (c) of the Property Act of 1925 that states that anyvariation should be written and signed by the legal owners.10If the persons fail to satisfy the above clause, section 53(2) of theAct that states that alterations can be made through resulting,implied or constructive trust.11Express agreement and implied conduct were the procedure used to makechanges to the beneficial interest, but after the ruling on the Stackv Dowden case, more factors can be used to claim that morevariations were made to the beneficial interests. Lady Hale statedthat “whatever the parties’ intentions at the outset, these havenow changed.”12For instance, if one of the parties who contributed to the purchaseof the house decides to make any improvements that result in anysignificant differences between the property bought and the currentone, then it can be concluded as variations of the beneficialinterests. The statement was about Mr. Stack, who had madeimprovements to the house that they had bought jointly with Ms.Dowden. Since the plaintiff and the defendant had not signed anyvariations in writing or through resulting, implied or constructivetrusts, then the modifications were done by Mr. Stack qualified to beconsidered as variations to the beneficial interest. Lord Neubergeradmitted to the Baroness’ ruling, “I gratefully adopt theexposition of the facts of this in Baroness Hale’s opinions,” [13]would change other related case laws after that of Stack v Dowdenbecause any improvements made to the property was a feature thatbelonged to the equitable accounting sphere where such factors didnot initially pose any impacts on the fair title. However, after thecase, judges can use such elements as part of determining whether theparties made any changes to their beneficial interests.

Another impact of the Stack v Dowden case was the importanceof the judiciary to understand that every case has its facts. Thedetails of a case may appear similar to other previous rulings, butthere is always that distinct aspect that makes a dispute unique inits way. Hence, the judiciary is urged to be keen to the details oftheir client so that they can identify that differentiating aspectthat may require judges not to follow other legal precedents andinstead develop theirs. When the case was first heard in the HighCourt, the judges argued that the Ms. Dowden and Mr. Stack deservedto have an equal share of the proceeds obtained from the sale oftheir house. The judge’s decision was based on the registration ofthe property that was done by the parties. Their actions led thejudge to presume that they would have equal shares of the home.However, when Ms. Dowden appealed the case, the unique factorsregarding the dispute were highlighted. Lady Hale said that “manymore factors than financial contributions may be relevant to diviningthe parties’ true intentions.14Some of the factors included the discussions or advice made duringthe transfer, why they opted to register the home in their names, thepurpose of acquiring the home, nature of parties’ relationship, andhow the purchase was financed. Some of the reasons that led theAppellant judges to rule on the unequal share were theircontributions and the kind of relations that the cohabiting partnershad since during their stay. Baroness Hale said that the High Courtjudges had indeed made an error in their ruling, “he looked attheir relationship rather than the matters which were particularlyrelevant to their intentions about this property.15She emphasized that the case was unique in its way, which requiredthe judges to be keener on the matters that would portray theintentions of both parties. Hence, Stack v Dowden positivelyaffects future cases to focus on the crucial factors that allow theconcerned parties to provide sufficient evidence that allows theadequate application of the English Law on cohabitation cases.

In conclusion, Stack v Dowden case has significantly changedcase laws before it and afterward in different ways. The case hasshown that the presumption where beneficial interest are not statedonly means that equity should be applied is not always the norm sincethat could not be the intent of the parties. It provides direction toother cases such as those involving sole legal ownership. Rebuttinghas also been affected as fairness and determining the intent ofparties can be both applied in cohabitation cases. The case alsoprovides more factors to be considered when determining the variationof the beneficial interests. It has enabled the legal practitionersto focus on the unique elements of a case as they are distinct.

Bibliography

Stack v Dowden [2007] UKHL 17

Gissing v Gissing [1970] UKHL 3

Oxley v Hiscox [2004] EWCA Civ 546

Law of Property Act 1925 c.20 (Regnal.15 and 16 Geo 5), Retrievedfrom http://www.legislation.gov.uk/ukpga/Geo5/15-16/20

Trustee Act 1925 c.19 (Regnal.15 and 16 Geo 5), Retrieved fromhttp://www.legislation.gov.uk/ukpga/Geo5/15-16/19/section/68

1 Stack v Dowden [2007] UKHL 17 para.1

2 Law Property Act 1925

3 Supra 1 para.51

4 Law of Property Act 1925 c.20

5 Gissing v Gissing [1970] UKHL 3

6 Oxley v Hiscox [2004] EWCA Civ 546

7Supra 1 para.61

8 Supra 6 para.69

9 Supra 1 para.37

10 Sec 53 (1) (c) Law of Property Act 1925

11 Sec 53(2) Law of Property Act 1925

12 Supra 1 para.70

13 Supra 1 para.96

14Supra 1 para.69

15Supra 1 para.86