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“The law concerning the acquisition of a beneficial interest in land for parties not married to the legal owner is not fit for purpose. Urgent reform is necessary to assist these parties.” Critically analyse the above statement in relation to land law, referring to relevant authorities and academic commentary. Beneficial interest in land a allows a person to have financial share in a property or the right to occupy a property, or both in some circumstances. Beneficial interest can arise through three different ways; constructive trust, express declaration of interests and resulting or implied trusts. With cohabitation on the rise and becoming a popular family structure in the UK, more problems occur as these couples do not have the same rights as married couples as they can never be common law married, inter vivios used by Hale described transfer disputes between unmarried couples are still governed by the law. The law regarding cohabiting unmarried couples is in much need of amendment, due to no change in the law to match rapid social change with a increase of the cohabiting family type, decisions in court have been difficult, difficulty to create legal fairness and certainty between the couples whilst connecting property law. Issues regarding ownership of a property usually stem from a broken unmarried relationship, if the property is owned by more than one individual it is held subject to a trust of land. Beneficial interest can arise from express declaration of trusts, which is a expression of declaration where no owning cohabitant and sole owner have both made a clear impression of sharing the property or land. This can be clearly indicated by factors such as a shared mortgage where the beneficial interests in the property are divided and shared equally. Pankhania v Chandegra 2012 the express declaration of trust indicated the defendant and claimant held beneficial interest in shares as tenants, an order for sale was acknowledged and equal shares were ordered. The declaration sets out the amount they are to hold beneficial interest and what specific way, express declaration over rules constructive trusts unless there is an exception in declaration such as fraud. Goodman v Gallant 1986, Mrs Goodman entitled to 50% of the beneficial ownership of the property, the absence of fraud the declaration of trust was respectful of the ownership rights regardless of the parties contributions. To create an express declaration of trust, the hold of land to benefit another has to be made clear for the legal owner, Re Kayford 1975 1 WLR 279 trust was created as Kayford Ltd held money from their clients through pre payments in trust for its clients. The express declaration must be in writing S.53(1) (b) Law of Property Act 1925 requires the declaration of trust to be in writing and signed by the individual declaring trust, the written declaration must contain terms of the trust Smith v Matthews. However exceptions have been made Rochefoucauld v Boustead 1897 where trust could be evidenced by oral evidence. The requirement of transfer of legal title to the trustee only occurs when the owner creates an express trust by the transfer of the legal title to a third party, without the transfer of the legal title it is not possible to create a trust. The legal title needs to be registered before express trust applies, Mascall v Mascall. Lastly, the trust must not offend the rule of perpetuity, Perpetuities and Accumulations Act 2009. In the absence of declaration of trust, constructive trusts may be signified. Constructive trust occurs when the trustee persuades another to act their detriment so they would receive beneficial interest, Gissing v Gissing 1971, contributions may not be sufficient to hold beneficial interest in the property. Constructive trusts include the contributions from the individuals to the overall purchase price, shares in constructive trust may result in being more than an amount contribute, similar to proprietary estoppel constructive trust requires a detriment. Inducement is a important stage of

constructive trust, without the claimant being induced by the legal owner that they would share ownership constructive trust would not exist. Gissing V Gissing, contribution to the acquisition occurred where one believed they would share ownership with another, an express agreement can lead the claimant to believe their entitlement to the property. Lloyd’s Bank v Rosset reflects a flexible approach of constructive trust, alongside with inducement the claimant must act to their detriment to complete the two stage process. Hussey v Palmer, a share of beneficial interest claimed by a proportion contributed from by the plaintiff as an equitable remedy, “it is a trust imposed by law whenever justice and good conscience require it” Lord Denning. However, this approach was cut down in Springette v Defoe 1992 being an absence of express agreement, express agreement occurs by the individuals who agree to contribute equally to mortgage instalments. Yet, there was no discussion on what their beneficial interests would be, Dillon LJ implied “the presumption of resulting trust is not displaced”. Common intention and detriment are required Gissing v Gissing however House of Lords created a main focus on common intention. The difference between inferred common intention and express common intention contribute greatly to constructive trust, focused in Lloyd’s Bank v Rosset 1991. Express common intention needs evidence of express discussions, illegality principle applies Barnett v Barnett 2008 where there was no constructive trust due to common intention was a unlawful purpose. Drake v Whipp 1996, Mrs Drake and Mr Whipp were unmarried where the property was conveyed into Mr Whipps name. Drake was only entitled to a third of beneficial interest, a common intention was found however it would be in proportion to Drakes contributions. Inferred common intention can be contained by the absence of express agreement. James v Thomas were unmarried, Mr Thomas being the wwsole registered owner. Miss James worked for free for Mr Thomas and paid a considerable amount to pay a bill for Mr Thomas, however she was not entitled to any beneficial interest as her contributions were insufficient with no claim of common intention despite his assurance she would be looked after in the event of his death. Reform to assist these parties would entitle Miss James to some amount of considerable interest due to considerable amount of work she did unpaid. If there is a common intention, the person seeking beneficial interest has acted their detriment the level detriment is less in express common intention, contributing to the price of a property creates a detriment. However other financial contributions can act as a detriment, Grant v Edwards 1986 Mr Edwards was a sole owner with his brother however his girlfriend, Mrs Grant legal title was not added although she made efficient contributions. This created a common intention which entitled Mrs Grant to half beneficial interest due to constructive trust. This principle did not apply in Eves v Eves 1975, the defendant changed her name however her legal title was never added, with no direct contributions to the property she was only entitled to half of the beneficial interest under constitutive trust. Many cohabiting couples live with one sole owner even though though the defendant will make contributions financially or through home improvements but will not be entitled to equal beneficial interest, reform is necessary to assist these parties. Unmarried couples that purchase a home in joint names Stack v Dowden can hold beneficial interest together if the legal title is held jointly. Holding legal titles is more significant in resulting trusts, in the absence of express declaration the person holding the legal title cannot taken full equitable ownership. There are two types of resulting trust; automatic resulting trust and presumed resulting trust. Automatic resulting trust occurs when the trust fails from the transfer to settlor to intended trustee, the trustee now holds the legal title however they do not hold equitable ownership. Presumed resulting trust can be formed by contributions to the property purchase or a voluntary transfer, voluntary conveyance. Resulting trust can be formed when a property is transferred to a third party, the party does not need to provide consideration, however it differs if there’s a relationship. Resulting trust rises if there

has been a contribution to the overall property price, if a contribution is made the person is able to take a share in the property, they share equitable ownership in proportion to the amount of contribution they made as previously discussed in Gissing v Gissing and Dyer v Dyer 1788. The main focus of parties not married to the legal owner can own joint own equity. If joint names are on the property even if the couple is cohabiting there is intention to own the property jointly therefore it does not matter who has contributed what and the proportion of contribution. Stack v Dowden allowed beneficial interest to be held jointly as the legal titles were held jointly even though investments were made separately, once the couple separated and the property sold there was a distribution of equal shares even though the couple were not married. Contribution to the property price creates trust, this is usually the only contribution that is sufficient. Tinsley v Milligan 1993, regardless of the defendant not being registered to the property the claimant was not able to claim full ownership of the property, the defendant had contributed to the purchase price of the property therefore it was understood the house would be owned jointly. Although, other contributions can be sufficient such as payments to the mortgage creation intention and trust, in some cases this has not been sufficient, Curley v Parkes 2004. Another acceptable contribution to the property price when purchase is discount on this overall price, Springette v Defoe after crediting a former tenet with a discount purchase price, the trial judge held beneficial trusts were equal. Although discount constitutes contribution to purchase price, so does a gift from a third party, Midland Bank v Cooke 1995. A contribution of the purchase price was received as a gift from a third part , the rest of the purchase price was supplied from Mr Cooke however he did not directly contribute to mortgage payments. Mrs Cooke had formally signed a consent form under undue influence, therefore she was entitled to 50% beneficial interest. Lord Justice Waite “I would therefore hold that positive evidence that the parties neither discussed nor intended any agreement as to the proportions of their beneficial interest does not preclude the court, on general equitable principles, from inferring one”.Contributing to house hold bills and furnishing the property does not contribute to the overall purchase price of the property as indicated in Pettit V Pettit 1970 AC 77. Mr Pettit lived in a property with his wife which she inherited, he spent £800 on repairs for the property and also furnishings the house sold and Mrs Pettit gave him some money from the sale. When they divorced years later he claimed beneficial interest of the property they currently lived in claiming he was entitled to proceeds of the sale, however Mr Pettit had beneficial interest in the sale. The contributions were not sufficient enough for Mr Pettit to hold equitable interest in the property. Lord Diplock “it’s common enough nowadays for husbands and wives to decorate and make improvements in their family home with no other intention than common use and enjoyment”. Equity will not assist a individual who had acted for an illegal purpose, yet if they do not have to plead or the claimant does not need to rely on the illegal conduct they will still be eligible to claim resulting trust. Tinsley v Milligan 1993 where the defendant did not have to plead the illegality as it as clear she contributed to the overall property purchase price therefore the house was owned equally. In some relationships it is presumed that the intention was a gift unless evidence is provided that the transferor wanted to claim interest, Tribe v Tribe 1995 between father and child where the defendant relied on illegal purpose which has not been put in place, moreover he was entitled to beneficial interest and eligible to have the legal title of the property transferred to him. Millet LJ believed the following propositions that the title of property passes both at law and equity even if the transfer has been made in a illegal nature. However presumption does not occur between mother and child Bennet v Bennet 1879, nor with sisters Gorog v Kiss 1977 however presumption exists between husband to wife transfers Gascoigne v Gascoigne 1981, however this is not for purpose during current times, reform is needed. There is also no presumption with cohabitants Rider v Kidder 1805, presumption is very out dated, and the views are have differed greatly since this time period as presumption is very gender bias. Presumption goes against Art 5 European Convention of

Human Rights, the Equality Act 2010 recognised outdated presumption of advancement and wanted to terminate it however it is doubtful it will be implemented. To conclude, unmarried cohabitation acquisition of beneficial interest is in great need of reform. Even though Law Commission tried to introduce the statutory scheme, the courts are still finding great difficulty being fair, precise and balancing legal certainty. Difficulty stems from the different contemporary relationships in current society whilst still using land law guidelines. It has become difficult to attain beneficial interests when the couples are unmarried, however Section 14 of the Trusts of Land and appointment of Trustees Act 1996 is the only law that is able to explain beneficial interest with non legal owners of the property....