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Getting your house in order on property ownership rights

View profile for Alex Burch
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Despite our best efforts, we can never predict the future with absolute certainty. However, we can make provision when our personal circumstances change to protect our interests in future years. For co-owners of property, this can be done by making of formal legal agreements to ensure the chosen division of assets at the time, and avoid claims being brought further down the line.

The recent case of Wall v Munday [2018] serves to highlight the importance of being proactive.

Bryan Wall and Christine Munday married in 1969 and bought a property as joint tenants. Under joint tenancy rules, they each owned the whole of the property with the other. The rules also stipulate that, in the event of the death of a co-owner, their interest in the property automatically passes to the surviving co-owner, regardless of whether they had written a Will.  This is known as the principle of survivorship.

It is possible to sever the joint tenancy if a co-owner wishes to end the arrangement and own the property as tenants in common instead. This arrangement means that each party owns specific shares of the property which can be left to whoever they wish, and survivorship will no longer apply. On their death, the share passes in accordance with their Will or, if none exists, in accordance with intestacy rules. However, this course of action was not taken in this instance.

Christine moved out of the property when the couple divorced in 1974 without a formal settlement concerning its ownership having been made. She never returned to the property, and Bryan was solely responsible for paying off the mortgage, maintaining and insuring the property until his death in 2015.

At this point, the property was still owned under a joint tenancy and Christine filed a death certificate with the Land Registry, anticipating that the property would pass to her by survivorship in the usual way. Her claim was challenged by Bryan's personal representative. The primary claim was that an informal settlement had been reached between the parties at the time of their divorce, which included a sale of Christine's interest to Bryan, which resulted in him becoming the 100 per cent beneficial owner of the property. An alternative claim was that the beneficial joint tenancy was severed by ‘mutual dealings’ and a variation of the parties' beneficial interests in the property was made in favour of Bryan.

Therefore, the Court had to consider whether Bryan's estate was entitled to a share of the property on the basis either that there had been an agreement between Bryan and Christine or that the joint tenancy had been severed by mutual conduct. The judge concluded that no agreement was made regarding the property divorce proceedings. However, he found that the mutual conduct between the parties resulted in the severance of the joint tenancy in 1975.

That being the case, it was then for the Court to determine what the parties' respective shares in the property were at that time. The judge found no apparent mutual conduct to indicate an intention to vary their respective shares in the property from the default position of 50 per cent each.

Despite Bryan being exclusively responsible for the property and being its only resident following the divorce, the legal liability under the mortgage remained throughout a joint liability. The judge held therefore that the parties were each entitled to half of the beneficial interest in the property.

Bryan’s personal representative appealed the decision. He argued that Bryan should have an 86 per cent share in the property, on the basis that mutual conduct following the divorce indicated an intention to sever the joint tenancy and vary their beneficial interests in the property.

The appeal was dismissed on the basis that the judge at first instance was justified in being unable to ascertain a common intention to vary their beneficial interests in the property. Although Christine did not contribute to it at all since the divorce, she was still found to have retained a 50 per cent interest in the property. The outcome may have proved to be very different had the ownership issue been addressed by both owners during the divorce proceedings and emphasises the need for co-owners to confirm arrangements sooner rather than later if circumstances change.

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