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STACK v DOWDEN

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Stack v Dowden [2007] UKHL 17


The decision of the House of Lords in Stack v Dowden provides an important framework which illustrates how the property disputes of unmarried co-owners are to be resolved upon separation. Common intention should be ascertained in the light of the whole course of conduct (now known as the ‘holistic’ approach).


Facts:


Mr Stack and Miss Dowden were a long term cohabiting couple with four children. In 1993 the couple purchased a family home to which Miss Dowden made a greater financial contribution. The property was conveyed into joint names without a declaration of beneficial interests. The transfer deed contained a declaration stating that the survivor would be able to give ‘a valid receipt for capital money arising on a disposition of the land.’ In October 2002 the couple separated, and Miss Dowden issued a written notice of severance to Mr Stack. This would usually result in an equitable joint tenancy becoming a beneficial tenancy in equal shares.[1] Mr Stack requested an order for sale and an equal division of the proceeds. The two main issues in this case were: (1) the effect of the transfer of property into the joint names of Mr Stack and Miss Dowden, and (2) the extent of each party’s beneficial interest in the property.[2]


Ratio:


Baroness Hale of Richmond gives the leading opinion of the majority. The majority of the Law Lords recognised that a framework should be applied in all cases concerning unmarried cohabitants.[3] Previously where there has been uncertainty regarding a party’s beneficial share in a property, the courts have contemplated whether there is an express agreement. Baroness Hale identified an express declaration of trust is conclusive unless it has been ‘varied by subsequent agreement or is affected by proprietary estoppel.’[4] Mr Stack argued that the declaration of ‘valid receipt’ in the transfer deed sufficed to a beneficial joint tenancy, which when severed would allow each party to claim an equal share of the proceeds. Baroness Hale concluded this was incorrect as recognised in Harwood v Harwood [5] and Huntingford v Hobbs.[6] Where an express declaration of trust does not exist the courts will attempt to identify the common intention of the parties concerning the extent of their shares.


In cases where only one of the parties owns the legal title to the property, sole beneficial ownership is the ‘starting point’.[7] This implies that the legal owner is entitled to the total proceeds of the sale. The onus falls upon the other party to prove that he/she has a beneficial interest in the property and to what extent.[8] Similarly in joint ownership cases, joint beneficial ownership is the ‘starting point’.[9] Accordingly each individual party is entitled to fifty percent of the proceeds. The onus is upon the party who intends that the beneficial interests are to be divided in unequal shares to verify this.[10] The underlying principle behind these presumptions is where there is an absence of an express declaration, ‘equity follows the law.’ As a legal owner of the property, Mr Stack was not required to prove that he had a beneficial interest in the property but to establish the extent of this interest.


There can departure from the above presumptions in particular circumstances. Baroness Hale stated that when considering whether to depart from these presumptions it is not simply a case of ‘what is the extent of the parties’ beneficial interest? but ‘did the parties intend their beneficial interests to be different from their legal interests?’[11] ‘Cases in which the joint legal owners are taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.’[12] Lord Walker acknowledges there will be a ‘considerable burden’[13] on the party who aims to demonstrate that their beneficial interests are unequal, and do not follow the law.


If the presumption is rebutted the courts will seek to discover what the parties intended as a result of their conduct.[14] Lady Hale in Stack v Dowden indicated that common intention should be ascertained in the light of the whole course of conduct (now known as the ‘holistic’ approach). She produced a non-exhaustive list of factors that may be taken into account.


The Holistic Approcah:


  • ‘the parties’ financial contributions to the acquisition of the property;

  • any advice or discussions at the time of the transfer which cast light upon their intentions then;

  • the reasons why the home was acquired in their joint names;

  • where applicable, the reasons why the survivor was authorised to give a valid receipt for capital monies;

  • the purpose for which the home was acquired;

  • the nature of the parties’ relationship;

  • whether the parties had children for whom they both had responsibility to provide a home;

  • how the purchase was financed, both initially and subsequently;

  • how the parties arranged their finances, whether separately or together or a bit of both;

  • how the parties discharged the outgoings on the property and their other household expenses;

  • the parties’ individual characters and personalities;

  • whether the parties were cohabiting or married;

  • indirect contributions, such as financing or constructing an extension or making improvements to property which added significantly to its value; and

  • any other factors indicating that the parties’ intentions may have changed over time.’ [15]

Analysis:


The House of Lords upheld the Court of Appeal’s ruling, dismissing Mr Stack’s appeal. Miss Dowden was entitled to sixty five percent of the sale proceeds. She succeeded in persuading the Law Lords that the beneficial interest should be divided other than equally by demonstrating that the parties had a different common intention. Baroness Hale identified each case will depend on its facts. The relevant factors to this decision were: (1) the parties contributed unequally to the purchase price of the property,[16] (2) they kept separate savings and investments[17], and (3) they maintained separate responsibility for household expenditure.[18]


The case of Stack v Dowden deals with a specific set of facts and as a result fails to present a widespread solution for various cohabitants. The courts can only explore differing facts on a case by case basis. Consequently numerous aspects regarding cohabitants remain undecided after Stack v Dowden. As this case concerned a property under joint ownership, the Law Lords did not address how trusts arise in sole ownership cases. It also remains uncertain whether indirect contributions to the acquisition of the property will constitute to an interest. Therefore parties who have made non financial contributions may find it difficult to acquire a share in the property unless they can provide definite evidence that there was an express common intention to share. The intentions of a cohabiting couple may change over the course of their relationship. This indicates that the legal status of the co-owners will also vary. The constructive trust principle does not recognise that the parties may hold the property in certain shares while they are together but may hold it different shares if they separate.

[1] Goodman v Gallant [1986] Fam 106. [2] [2007] UKHL 17, at [40] Baroness Hale. [3] [2007] UKHL 17. at [3] Lord Hope. [4] Goodman v Gallant [1986] Fam 106, [2007] UKHL 17, at [49] Baroness Hale. [5] Harwood v Harwood [1991] 2 FLR 274. [6] Huntingford v Hobbs [1993] 1 FLR. [7] [2007] UKHL 17, at [56] Baroness Hale, [2007] UKHL 17, at [4] Lord Hope. [8] [2007] UKHL 17, at [56] Baroness Hale. [9] [2007] UKHL 17, at [56] Baroness Hale. [10] [2007] UKHL 17, at [68] Baroness Hale. [11] [2007] UKHL 17, at [66] Baroness Hale. [12] [2007] UKHL 17, at [69] Baroness Hale. [13] [2007] UKHL 17, at [14] Lord Walker. [14] Oxley v Hiscock [2005] Fam 211, Midland Bank v Cooke [1995] 4 All ER 562. [15] [2007] UKHL 17, at [69] Baroness Hale. [16] [2007] UKHL 17, at [87] Baroness Hale. [17] [2007] UKHL 17, at [90],[92] Baroness Hale. [18] [2007] UKHL 17, at [91] Baroness Hale. [19] Dixon, M. (2007) “The never-ending story-co-ownership after Stack v Dowden,” Conveyancer and Property Lawyer, pp.456-461. [20] Sevitt, D. and Freeman, J. (2007) “Stack v Dowden: determining property rights on separation of unmarried cohabitants,” Private Client Business, pp.366-373. [21] Law Com. No 307, para.2.16. provides an important framework which illustrates how the property disputes of unmarried co-owners are to be resolved upon separation.


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