Shares in the home question Watch

TheProviso
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If there is an express declaration of trust that a jointly owned home shall be held by the owners as tenants in common in, say, 70/30 shares then the court will give effect to this if one wishes to sell their share.

If there is no express declaration then if one of the owners, after a relationship breakdown, wishes to sell his share the court will impose either a resulting or constructive trust and decide the percentage share under Stack v Dowden.

But what happens if there is an an express declaration of a joint tenancy and then one party choses to sever, the requirements in Williams v Hensman having been met?The presumption is apparently that the parties hold the beneficial interest as tenants in common in equal shares (although I don't know where the authority for it being in equal shares comes from), but apparently the parties can make an agreement to hold in unequal shares? What happens if the parties can't agree - but, for example, one contributed 90% of the cost of buying the property? Can that party argue there is a constructive trust where they hold in unequal shares?

Any help appreciated - I'm assuming my first two paragraphs are right, if they're wrong feel free to correct. =)
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jjarvis
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(Original post by TheProviso)
If there is an express declaration of trust that a jointly owned home shall be held by the owners as tenants in common in, say, 70/30 shares then the court will give effect to this if one wishes to sell their share.

If there is no express declaration then if one of the owners, after a relationship breakdown, wishes to sell his share the court will impose either a resulting or constructive trust and decide the percentage share under Stack v Dowden.

But what happens if there is an an express declaration of a joint tenancy and then one party choses to sever, the requirements in Williams v Hensman having been met?The presumption is apparently that the parties hold the beneficial interest as tenants in common in equal shares (although I don't know where the authority for it being in equal shares comes from), but apparently the parties can make an agreement to hold in unequal shares? What happens if the parties can't agree - but, for example, one contributed 90% of the cost of buying the property? Can that party argue there is a constructive trust where they hold in unequal shares?

Any help appreciated - I'm assuming my first two paragraphs are right, if they're wrong feel free to correct. =)
With regard to your second paragraph, the court begins from a presumption that equity follows the law. If the property is held in joint names in law, the court will start from a presumption that the property is held on constructive trust for the beneficial owners as joint tenants. (Lord Neuberger MR applied a conventional resulting trust analysis to reach the same conclusion on the facts, but he is in the minority--the ratio in Stack is a constructive trust analysis, not one based on a resulting trust, and this seems to be the new orthodoxy.) It takes substantial evidence to rebut this presumption, but the court will look to a wide variety of evidence. The situation for property held in one party's name is presumably analogous, but I don't think there's quite as much clear case law on it. The presumption is different in commercial property (including property purchased in the joint names of family members as an investment, rather than as a residence), where the court is more likely to imply a resulting trust. This follows principles of equity and the presumption against a gift: Laskar v Laskar.

Severance of a joint tenancy leads to tenancy in common in equal shares. The authority is Goodman v Gallant.

The other question is more difficult. I don't think a party could argue that in the case of a severance they intended their shares to revert to a resulting trust based on contribution--though perhaps with a pre-trust agreement to that effect they could do so. A subsequent agreement to hold on different shares could presumably be reached, but I would have thought it would require some kind of reliance or consideration, or an express document. Either the trust would have to be varied, or the court would have to imply a constructive trust. A constructive trust requires detrimental reliance, so it's hard to see how that would be made out. This seems a somewhat tricky question, though, so you might want to ask your lecturers.
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TheProviso
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Thanks for the reply - most helpful. =)
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