Stack v Dowden applied

As is well known, the House of Lords in Stack v. Dowden made it quite clear that (in the absence of an express declaration of trust) it will not be easy for a joint owner to demonstrate a shared intention to own the property in unequal shares, where there is no express agreement to that effect. However, a seed of doubt was sown by their Lordships as they found that Ms Dowden had discharged that burden. Well, it is now becoming clearer just how heavy the burden really is.

In Fowler v Barron [2008] EWCA Civ 377 (hat-tip to Nearly Legal, who has already posted on this), Mr Barron put down nearly £30,000 towards the purchase price, paid the mortgage, the council tax and utility bills and yet the Court of Appeal found that he still hadn't rebutted the presumption of equal shares. The point was that, unlike in Stack, there was nothing exceptional about the facts here. Lady Justice Arden:

"The facts in this case are different in many respects. For instance, the evidence as to mutual wills [contradicting Mr Barron's assertion that the property was only conveyed into joint names so that it would pass to Miss Fowler by way of survivorship if he were to die before her] is not replicated in Stack. Moreover, unlike the parties in Stack, there is no evidence that Mr Barron and Miss Fowler had any substantial assets apart from their income and their interest if any in the property, and Miss Fowler made no direct contribution to paying for the property. I do not think that it is reasonable to infer that the parties intended that Miss Fowler should have no share of the house if the relationship broke down. That might leave Miss Fowler dependent on state benefits and housing for support. The way that she used her own income indicates that the parties largely treated their incomes and assets as one pool from which household expenses will be paid. There is also important evidence about their wills ... In those circumstances, I do not consider that the presumption of equal beneficial interests can be successfully rebutted."

It may be considered that this would leave Miss Fowler better off than a cohabitee who had contributed a fixed share of the purchase price, as there it might be inferred that there was a common intention to share ownership in the same proportions as the contributions. Lady Justice Arden also dealt with this:

"...the reason why the result in that case may be different is because that is what the court infers to be the parties' intention. It would have been open to them to agree to divide the ownership in any other way. The basis, on which Stack proceeds, is that the court's jurisdiction is based on the parties' common intention, expressed or inferred. The parties' autonomy to devise a solution suitable for their circumstances is preserved."

All of this may seem somewhat hard upon Mr Barron, but it is a question of intention, rather than fairness. To prove an intention that shares should be unequal there needs to be something particular and unusual about the facts of the case. As Lord Justice Toulson said, there was nothing at all unusual about the circumstances in this case.


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