Thursday, May 31, 2012

Aspden v Elvy: Ascertaining the common intention

Leeds Combined Court Centre
The recent case of Aspden v Elvy [2012] EWHC 1387 (Ch) is an example of the application of the principles in Jones v Kernott.

The Facts: The parties met in 1985. In 1986 Mr Aspden purchased Outlaithe Farm, which comprised a farmhouse, a number of outbuildings, a derelict barn with planning permission for conversion to a dwelling and about 6 acres of land. The parties began cohabiting shortly after this, and there were two children of the relationship, both of whom are now grown up.

The parties separated in late 1995 or early 1996. Ms Elvy left Outlaithe Farm with the two children and went to live nearby. By a Transfer dated 21 January 2006 Mr Aspden transferred Outlaithe Barn (which included almost the whole of the land which had been comprised in Outlaithe Farm save for the farmhouse itself) to Ms Elvy. There was considerable dispute as to the circumstances of the transfer and the parties' intentions at that time (set out in detail at paragraphs 58 to 64), but essentially Mr Aspden maintained that there was a common intention that he should retain an interest in the barn. Ms Elvy denied that there was any such intention.

Following the transfer Mr Aspden remained living at the farmhouse until it was sold in January 2008. Mr Aspden received about £188,000 from the sale, after discharging creditors. Thereafter he lived in a static caravan situated (with Ms Elvy's consent) on part of the land within the curtilege of Outlaithe Barn.

Steps were taken to convert Outlaithe Barn into a dwelling-house. Mr Aspden made a substantial financial contribution to the cost of the conversion works but the extent of the contribution was disputed. Mr Aspden contended that the payments he made were pursuant to a common intention that the parties would marry and cohabit as a family, or a belief on his part that that was the position. Ms Elvy contended that there was never any common intention that they would marry or cohabit, and that the payments were gifts to her in recognition of her contributions to the family, and in respect of her interest in Outlaithe Farm.

Mr Aspden put his case on the basis of a constructive trust and/or proprietary estoppel. Ms Elvy contended that she was the absolute owner of Outlaithe Barn and denied that any proprietary estoppel arose.

The Decision: The case was heard by His Honour Judge Behrens, sitting as a Judge of the High Court in Leeds. After going through the facts in detail, he set out the relevant law at paragraphs 92 to 101 of his judgment. In particular, he referred to Stack v Dowden and Jones v Kernott, the recent authorities on the beneficial entitlement to a shared home. As he pointed out, both of these were joint names cases, but there are passages in the speeches which refer specifically to the situation where the legal title is vested in one person. In particular, in paragraphs 16 and 17 of the judgments of Lord Walker and Baroness Hale in Jones v Kernott they said:
16. …To the extent that we recognise that a "common intention" trust is of central importance to "joint names" as well as "single names" cases, we are going some way to meet that hope. Nevertheless it is important to point out that the starting point for analysis is different in the two situations. That is so even though it may be necessary to enquire into the varied circumstances and reasons why a house or flat has been acquired in a single name or in joint names…

17. The starting point is different because the claimant whose name is not on the proprietorship register has the burden of establishing some sort of implied trust, normally what is now termed a "common intention" constructive trust. The claimant whose name is on the register starts (in the absence of an express declaration of trust in different terms, and subject to what is said below about resulting trusts) with the presumption (or assumption) of a beneficial joint tenancy.
As to proprietary estoppel, Judge Behrens referred to the three elements identified by Lord Walker in Thorner v Major: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance.

Judge Behrens then set out his findings, including the following:

1. That on the crucial issue of the parties' intentions at the time of the transfer, he preferred the evidence of Ms Elvy, and that therefore the transfer by Mr Aspden was and was intended to be an outright transfer of his legal and beneficial interest in the barn (paragraph 118).

2. That on the issue of the financial contribution to the cost of the conversion works, he preferred Mr Aspden's evidence, and found that his contribution was between £65,000 and £70,000 (paragraph 122).

3. That he could not accept that the proper inference was that the contributions were intended to be gifts (paragraph 124) - if that was the intention Mr Aspden would have left himself nowhere to live except the caravan.

4. The proper inference from the whole course of dealing was that there was a common intention that Mr Aspden should have some interest in the barn (paragraph 125).

5. That he valued Mr Aspden's interest at 25%, which he felt represented a fair return (paragraph 128).

6. That it was not necessary to consider in detail the claim based on proprietary estoppel, as in his view the result would be the same (paragraph 129).

7. That accordingly, the barn was held by Ms Elvy as to 75% for herself and 25% for Mr Aspden (paragraph 130).

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