PROPERTY RIGHTS-2
Introduction
Despite the consequences of cohabiting after separation when properties are involved, many couples prefer cohabiting rather than legal marriages that can enable them secure their position when issues dealing with interest in property rights arise in law. The law has in many instances found it difficult to give fair solutions in cases where ownership of property is involved. The courts are often torn between providing peaceful arbitration of disputes and following the existing laws meant to resolve such issues (Angermeimer, 1974). Cohabitation bills have been advanced by the law makers but none has officially been made a binding law like existing statutes.
The Hammond V Mitchell Case
The Court in the case of Hammond V Mitchell, where the cohabitee sought equitable interest in property held in sole name of former partner, observed in regards to the allocation of property rights between cohabitants, that a court enjoys no overarching discretion and there is no ability for the judge to always produce a result that is fair and reasonable in such circumstances. It concluded by stating that “….the entitlement of a party turns purely upon the application, as between strangers of cold and inflexible principles of law and equity…” This particular case is important especially in the jurisprudence on property rights and cohabitants.
The case involved Mr. Hammond and Ms Mitchell who started cohabiting in the year 1977. As a result, they had two children together. During their period of cohabitation, Ms Mitchell supported Mr. Hammond in his businesses. They lived in a bungalow at Essex legally registered under Mr. Hammond as the sole owner of the bungalow. Mr. Hammond had made a verbal agreement with Ms Mitchell that half of the property they owned were hers. No formal agreement was made in regards to the property ownership. They later separated in the year 1989 which saw Ms Mitchell claiming beneficial interest in the bungalow. The issue presented to the court by this case was as to whether Ms Mitchell could validly claim part of the assets despite not being legally married to Mr. Hammond.
Of importance to note is that the couple was not officially married as required by the law. Therefore, the Matrimonial Causes Act could not apply to them. This Act provided an approach which was flexible in matters of division of property. The Court stated that;
“Had they been married, the issue of ownership would scarcely have been relevant because the law these days, when dealing with the financial consequences of divorce, adopts a forward thinking perspective in which questions of ownership yield to the higher demands of relating the means of both to the needs of each … Since this couple did not marry, none of that flexibility is available to them … their financial rights have to be worked out according to their strict entitlements in equity, a process which is anything but forward-looking and involves, on the contrary, a painfully detailed retrospect”.
Despite them not being married, Ms Mitchell argued that Hammond had expressly stated verbally that the properties were to be held on trust for them both in equal shares hence an express agreement was made. In his defense, Hammond stated that there was no such agreement between him and Mitchell and claimed that title to properties should follow the law on legal titles therefore making him the sole owner of the properties. In the case of Thompson V Hurst, the court allowed equal distribution of assets to cohabitants because there was an express common intention that he should have beneficial interests in the property and that the agreement between the two made him and Ms Hurst to enjoy the status of equitable joint tenants. However, not every declaration of trust is admissible or can be used to claim ownership. The law commission expounded on the topic by giving insight on why the courts continue to enforce express declaration of trust in some instances and why it does not in others (Law Commission, 2002). The case of Stark V Dowden through Lord Hope concluded that;
“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”.
The court is usually tied because the law provides for sharing of property when the parties involved are married. This case however was ruled based on the evidence provided in addition to the court’s assessment on the intent of both parties. The Court granted Ms Mitchell her request by awarding her half of the total interest in properties. The Court found that there was actually an express agreement between the parties in regards to the ownership of the house. The court stated in that regard that, there was intention between the parties according to the evidence presented before the court, on common intention to share the house equally (Bevan, 2019). However, this raises more questions on the relation of one law to another. For instance, Section 53(1) (b) of the LPA does not recognize informal express trust of land. The provision states that express trust of land should be in writing failure to which, it becomes unenforceable. Such conflicts of the law also weigh down the courts when deciding or when making a ruling that involves express declaration of trust.
The ruling in Hammond has since received criticism. One of the critiques is that law is unsatisfactory. For instance, the ruling enabled cohabitants to have interest in their partners’ property just like married couples do. Therefore, the law is complex and expensive in its reliability. It gives rise to hardships for most of the cohabitants and their children in the long run (Ministry of Justice, 2011)
The Concept of Sole Name and joint names transactions
As earlier mentioned when discussing express declaration of trust, it is the duty of the court to consider what the parties said to each other and did on the evidence presented so as to determine beneficial ownership. This duty has been articulated in the Hammond’s Case and Thompson’s Case after the case considered evidences presented to make a ruling. Oral evidence is admissible if the claimant satisfies the court with corroborating evidence to that effect. Until one party satisfies the court that the trust was express or constructive, the general rule is that the legal title remains with the sole owner.
Relying on the case of Secretary of State for Work and Pensions v LB Tower Hamlets (2018), the claimant failed to satisfy the court in regards to dispute over property of the defendant. The court concluded by stating that there was no common intention between the parties of any constructive trust as the property was more of an investment that just a home.
Joint names transactions on the other hand are easier than the solo names transactions. In joint transactions, statutory trust of land arises because it is usually in writing. However, the court must look for express declaration of beneficial ownership. If there is none, the court will follow the joint agreement between the parties. The case of Jones V Kernott stated that the rationale behind equitable sharing is because of the dynamics surrounding the parties’ intention and reason to put the particular property into joint names. Lord Walker affirmed this sentiment by stating that in a joint ownership, the parties do not necessarily hold each other accountable for each and every contribution made but rather do it jointly hence the equal share principle.
Comparative Jurisprudence
In comparative jurisprudence, The case of Taylor V Polackwich brought in the idea of modern times and the embracing of the new realities where getting married might not be an option in some certain circumstances. In this case, commentaries suggest that the trial court achieved a fair and equitable outcome regarding the sharing of assets which was acquired during cohabitation. The appellate court however reversed that ruling and claimed that the ruling did not follow the laws of equity or any law in that regard (Rosen, 1984). As the world changes and progresses, there are harsh economic realities that should be embraced not only by the ordinary citizens but also by the courts. It is the responsibility of the law makers to ensure that every aspect of life and its realities are incorporated in the instruments of the law.
As comparative analysis taken from England and Wales, Canada, Singapore and Hong Kong in regards to property allocation of unmarried couples cohabiting, the law in each jurisdiction is led by the principle of logic so that a fair balance can be stroked in turn protecting the vulnerable (Hang, 2018).
References
Angermeier, R. (1974). Property Rights Between Unmarried Cohabitants. Ind. LJ 50, 389
Bevan, C. (2019). Search for Common Intention: The Status of an Executed, Express Declaration of Trust post-Stack and Jones. 135 L. Q. R. 660
Douglas, G., Pearce, J., & Woodward, H.(2009). Cohabitants, Property and the Law: A Study of Injustice. The Modern Law Review, 72(1), 24- 47.Retrieved January 14, 2021, from http://www.jstor.org/stable/205332222
Hang, Y. & Leung T. (2018). Property Rights of Cohabitants: A Comparison of Four Jurisdictions. Hong Kong LJ 48 837
Rosen, J. (1984). Taylor v. Polackwich: Property Right if Unmarried Cohabitants From Marvin to Equity. Golden Gate UL Rev. 14, 745
Hammond V Mitchell [1991]’ (Lawteacher.net, January 2021) https://www.lawteacher.net/cases/hammond-v-mitchell-1991.php?vref=1 accessed 14 January 2021
Jones v Kernott [2011]
Matrimonial Property Act [1973]
Ministry of Justice [2011]
Thompson V Hurst [2012] EWCA Civ. 1752
Secretary of State for Work and Pensions v LB Tower Hamlets (2018)
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