John Hooper & Co

Solicitors

Newsletter 15 – The difficulties of enforcing an interest in a property by one cohabitee against the other

WHOSE HOUSE IS IT ANYWAY?

According to recent statistics, the proportion of couples living together now matches or exceeds the proportion who are married. As ever, the development of the law to manage this social trend is sadly lacking.

In divorce law, powers exist to adjust the ownership of property to achieve a fair and reasonable outcome for both parties. No such discretion exists for cohabitees. The starting point (and in many cases, the end point) is the Title Deeds.

There have been a number of recent cases where one party has sought to establish an interest in a property which is in the other party’s sole name. In other cases where property is held in joint names attempts have been made to establish a greater than 50% share of the net value of the property. A survey of the decisions in those cases reveals the following approach by the Judge:-

1.In whose name are the legal and beneficial interests in the property vested?

2.If a person seeks to claim a position different to that shown on the Title Deeds, that person must prove it.

3.The claiming party must, in almost all cases, establish that there was a “common intention” between the parties that a different situation as to ownership existed to that which was shown on the Title Deeds.

4.It is necessary to look at the whole course of conduct of the parties throughout their relationship to establish whether a share or increased share was available to the claiming party, and if so in what proportion.

5.Most recently in James v Thomas the Court stated that it was not for the Courts to decide what was fair and reasonable. It had to apply the strict principles and guidelines that had developed over the years.

One senses, as the cases are reported, that the High Court and the Court of Appeal are seeking to limit the number of cases (and there are probably many) which come before them for decision. The cases are time consuming and very expensive and in James v Thomas and Fowler v Barron the message has been laid down forcefully:-

“do not come to Court with a claim for an interest in a property unless you have very good evidence to support your claim.”

September 2008

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