Wilson v Charles

Citation:           TT 2015 HC 339

Title:                 WILSON v. CHARLES

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           CV 1391 of 2012

Judge(s):          Dean-Armorer, J.

Date:                November 16, 2015

Subject:           Family Law

Subsubject:      Co-habitational relationship – Application for a declaration as to the entitlement of the claimant in the beneficial interest in the family home – Whether the common intention of the parties to have joint beneficial ownership changed in the course of the relationship.

 

Appearances

Mrs. Barbara Lodge Johnson, Attorney-at-law for the claimant.

Mr. St. Clair O’Neil, Attorney-at-law for the defendant.

 

DEAN-ARMORER, J.

1. In these proceedings, the parties had shared a cohabitional relationship for seventeen (17) years. They acquired a leasehold interest in premises intended to be their family home.

 

2. Fourteen (14) years after separation the claimant approached the Court for a declaration as to her entitlement in the beneficial interest in the family home.

 

3. In the course of these proceedings, the Court considered the principles which govern the rights of parties in the home. In particular the Court considered the effect of two (2) recent authorities of the UK Supreme Court: Stack v. Dowden [Stack v. Dowden [2007] 2 All ER 929] and Jones v. Kernott [Jones v. Kernott [2012] 1 All ER 1266.].

 

 

PROCEDURAL HISTORY

4. By her fixed date claim, filed on the 4th April, 2012, the claimant sought the following relief:

 

(1) “An order that the claimant is seized and possessed of an undivided one half share and/or interest in all and singular the lease hold premises more particularly described in Deed dated the 8th of June, 2002 and registered as No. DE: 2002 01533521

 

(2) An order that the property situated at #7 Robin Crescent Edinburgh, Chaguanas be partitioned and or sold and that the proceeds of sale of the said property be distributed equally or where partitioned be divided in equal shares between the claimant and the defendant.

 

(3) An order for the valuation of the claimant’s share or interest in the said property.

 

(4) An order that the defendant to pay the claimant’s costs of this action.

 

(5) Such further and other relief as the Court deem just.”

 

5. Together with her fixed date claim form, the claimant filed her supporting affidavit, which had been sworn on the 4th April, 2012.

 

6. The defendant filed his appearance on 13th April, 2012 and his defence on the 31st May, 2012.

 

7. The defendant swore and filed two (2) affidavits in the support of his defence. On the 13th September, 2012, Mr. Charles, swore his principal affidavit, which was filed on 14th September, 2012.

 

8. On the 18th January, 2013, Mr. Charles swore a supplemental affidavit, which was filed on the 27th February, 2013. The supplemental affidavit of the defendant was substantially the same as his principal affidavit.

 

9. The trial of the fixed date claim was set for the 9th May, 2014. On that day, the Court heard the cross-examination of the parties and gave directions for the filing of written submissions.

 

10. The Court reserved Judgment in this matter on the 27th November, 2014.

 

 

FACTS

11. The claimant, Carol Anne Wilson began cohabiting with the defendant, Boswell Charles in 1978.

 

12. They lived together for some seventeen (17) years. Their union produced four (4) children Oswald, Dwight, Tenika and Ruel.

 

13. In or around 1985, when the claimant was an employee of the Development and Environmental Works Division (“DEWD”) and the defendant an employee of the Ministry of Health, the parties were granted permission from the National Housing Authority (“NHA”) to occupy premises formerly known as Lot #92, Edinburgh 500, Chaguanas, and now known as No.7 Robin Crescent, Edinburgh 500, Chaguanas. The premises comprised a flat two (2) bedroom concrete dwelling house [See paragraph 10 of the affidavit sworn and filed by the claimant on 4th April, 2012]

 

14. The claimant alleged that the cost of the property at that time was one hundred and thirty-one thousand, nine hundred and fourteen dollars ($131,914.00). [See the affidavit sworn by the claimant and filed on the 4th April, 2012] The defendant alleged that there was a mortgage and that the value of the mortgage was eighty-three thousand and seventy-three dollars and ninety-three cents ($83,073.93). [See paragraph 4 of the affidavit of the defendant sworn on the 13th September, 2012 and filed on the 14th September, 2012] This sum is also reflected in the Deed of Lease. [The Deed of Lease dated the 8th June, 2002 and exhibited as “A” to the affidavit of the claimant filed on the 4th April, 2012]

 

15. The terms of their occupation were unclear. Neither party produced any documentation to show the conditions upon which they occupied the premises. Indeed, the defendant deposed that there was no documentation [See paragraph 3 of the supplemental affidavit sworn by the defendant on the 18th January, 2013 and filed on 27th February, 2013].

 

16. It was the contention of the claimant that she paid a deposit of eight thousand dollars ($8,000.00) and that this was the entire deposit which was due. Under cross-examination, the claimant admitted that she had no document to prove the payment of the eight thousand dollars ($8,000.00).

 

17. The defendant, by contrast, contended at paragraph 8 of his supplemental affidavit, that the down payment was paid equally between himself and the claimant. The defendant also failed to produce any documentary proof or to specify the sum which was paid. However, under cross-examination, he stated that the deposit was five thousand to six thousand dollars ($5,000.00 – $6,000.00).

 

18. It was put to the defendant that the claimant paid the deposit by herself. Under cross-examination, the defendant denied this suggestion on two (2) occasions. However, the defendant volunteered that he gave the claimant “the money” over a period of time. The defendant therefore admitted that he repaid or reimbursed the claimant. From this, the Court inferred that it was probable that the claimant advanced the whole deposit and that over a “period of time” she was reimbursed by the defendant. I therefore accepted that the initial deposit was paid by the claimant even if the defendant may have reimbursed the claimant over a period of time.

 

19. The defendant was cross-examined as to the down payment and as to his intention in respect of the premises. When asked what he was thinking in purchasing the property, he stated that he intended it to be a family home.

 

20. The parties were also obligated to pay a monthly rent which was initially nine hundred dollars ($900.00) and was later reduced to six hundred dollars ($600.00).

 

21. There is no dispute that the monthly rent was initially paid by the claimant. She continued to pay this sum until the year 1987, when her employment came to an end.

 

22. Thereafter, the defendant undertook payments of the monthly rent, which by 1987 had fallen into arrears in the sum of nine thousand, six hundred and seventy-seven dollars and thirty-eight cents ($9,677.38).

 

23. From 1987 until 2002, the defendant was solely responsible for payment of the monthly rent of six hundred dollars ($600.00). Although this has not been disputed by the claimant, the defendant has provided evidence by way of his pay slips which were exhibited in a bundle marked “B.C.1”.

 

24. In 1995, the claimant left the matrimonial home. Her reason for leaving is disputed. The claimant contends that the defendant had been abusive to her, as a result of which she obtained a restraining order. The defendant on the other hand contends that the applicant was involved in another relationship.

 

25. In my view, however, the reason for the ending of the relationship is irrelevant in the context of this application, where the respective conduct of the parties is not a factor which the Court will consider.

 

26. Following the termination of the relationship, neither party approached the Court for any declaration as to their rights in the premises. The claimant took no steps to secure her interest in the home. The claimant made no contributions towards the payment of the mortgage. Her involvement with the property ended with the relationship.

 

27. In 2002, the parties obtained a deed of lease a copy of which has been annexed to the affidavit of the claimant and marked “A” [Affidavit of Carol Wilson filed on 4th April, 2012].

 

28. The Deed of Lease was made on the 8th June, 2002 between the National Housing Authority (“NHA”) of the one part and the parties, Carol Anne Wilson and Boswell Charles of the other part, as Lessees.

 

29. The Lease recited the fact that the Lessor was seised and possessed of premises described in the Schedule of the Head Lease dated the 19th September, 1990. The Lease also recited that the Lessor had agreed to grant the Lessees a sublease.

 

30. The Deed witnessed the following demise:

 

“…in consideration of the sum of …(83,073.53)by way of premium paid by the Lessees…the Lessor HEREBY DEMISES unto the Lessees ALL THOSE demised premises… TO HOLD the same unto the Lessees from the 2nd June 1996 for a term of 199 years…”

 

31. In 2009, the defendant gave the claimant five thousand dollars ($5,000.00) to assist her to secure a rental property. This payment has not been disputed and is proved by a hand written receipt dated the 21st February, 2009 and signed by the claimant. A copy of the receipt is exhibited as “B.C.2” to the supplemental affidavit of the defendant.

 

 

ISSUES OF FACT

32. A number of issues of fact have arisen in this claim. The first issue arises in respect of the claimant’s contention that she paid the entire “deposit” of eight thousand dollars ($8,000.00). This was disputed by the defendant who alleged that the parties paid the deposit together. I have considered this issue at paragraphs 13 to 15 supra and find that on a balance of probabilities, the claimant paid the whole of the initial deposit of eight thousand dollars ($8,000.00).

 

33. The second issue concerns the payments or other outgoings on the property. Accordingly, at paragraph 4 of her affidavit, the claimant alleged that she paid water rates and electricity bills and made substantial contributions towards the general expenses, provided housekeeping and brought up the children [Paragraph 4 of the affidavit of the claimant filed on the 4th April, 2012].

 

34. The defendant, at paragraph 7 of his supplemental affidavit, denied the claimant’s allegation that she paid outgoings. He contended instead that he paid all household expenses and that the maintenance of the household and care of the children was a joint task.

 

35. There was no extensive cross-examination on this issue. However, it appeared to be very unlikely that the claimant would have been financially equipped to pay outgoings while she was not working. I accept that she cared for the home and the children at least until the end of the relationship in 1995.

 

36. Another issue of fact arises as to the defendant’s contention that he effected improvements to the property. The claimant has stoutly denied this allegation under cross-examination. In this regard, the defendant has produced receipts to prove expenditure in the sum of ten thousand dollars ($10,000.00). The defendant has also alleged that he had taken voluntary separation from his employment (“VSEP”) and that from these funds he carried out improvements to the tune of one hundred thousand dollars ($100,000.00). 37. The defendant has been able to prove only a fraction of this figure by the production of receipts. He has indicated in his evidence that he misplaced most of his receipts.

 

38. In his affidavit however, the defendant was able to itemize the improvements which he conducted. He stated that he installed a ceiling in the living room and kitchen, tiled the entire bathroom and corridor, installed new kitchen cupboards, fenced the front of the house and changed the front, side and inside bedroom doors and the toilet. The defendant also alleged that he landscaped the property and painted it every three (3) years since acquisition.

 

39. The claimant did not deny these allegations by way of an affidavit. She did not seek the Court’s permission to file an affidavit in reply to provide any positive evidence that the defendant was fabricating his allegation as to improvements. Her only attack on this evidence came by way of the cross-examination of her attorney-at-law, who pointed out to the defendant that the receipts which the defendant provided fell short of his alleged expenditure of one hundred thousand dollars ($100,000.00).

 

40. In respect of the defendant’s documentary evidence as to improvements, it was clear that he had been unable to produce all the documents. In my view however, the defendant has sufficiently explained the absence of the receipts. Moreover, the claimant has not contradicted the contention that specific improvements were made. I therefore accept as a matter of fact that the defendant effected the improvements which he itemized at paragraph 19 of his affidavit and that his expenditure approximated to one hundred thousand dollars ($100,000.00). The defendant was also questioned as to the source of his funding.

 

41. It is my view that the defendant’s answers to the second line of questioning were satisfactory. He told the Court that he had taken a Voluntary Separation Employment Package (“VSEP”) and received the sum of one hundred and sixty thousand dollars ($160,000.00). I accept this as a matter of fact that the defendant was financially equipped to effect improvements because he has availed himself of the VSEP.

 

42. Another issue concerned the defendant’s allegation that the claimant took everything from the house except a mattress and a stove. The claimant failed to file an affidavit in reply and this evidence remained un-contradicted. I therefore accepted the defendant’s evidence that the claimant left with most of the furnishings in the home.

 

43. Since the year 2002, the defendant has continued to occupy the property with his wife and the adult children of the family.

 

 

LAW

SYBIL PLATO v. GEORGE TAYLOR HCA# 2168 OF 1998

44. This was a decision of the Honourable Justice Bereaux (as he then was). In that case Bereaux, J. considered the claim of the plaintiff who had cohabited with the defendant for some twenty-five (25) years. Justice Bereaux noted that by the end of the relationship, the defendant was “a man of considerable worth”. [See HCA#2168 of 1998 Sybil Plato v. George Taylor at page 1] The legal interests in all his real estate properties were vested in the defendant. Fourteen (14) years after the end of the relationship, the plaintiff approached the Court seeking a half share in the property.

 

45. Justice Bereaux referred to and applied the learning propounded by the Court of Appeal in Aziz & Aziz v. Harinarine [Aziz & Aziz v. Harinarine Civil Appeal 46 of 1987]. In that case Sharma J. (as he then was) expressed the view that living together in a common law relationship over an extended period of time constituted prima facie evidence of a common intention that she should have beneficial interest in the property even if it is solely in the name of the husband.

 

46. The Court of Appeal rejected the view that was expressed by Sharma J. (as he then was) and held that the relevant legal principles were to be found in the House of Lords decision in Gissing v. Gissing [Gissing v. Gissing [1970] 2 All ER 780].

 

47. Gissing v. Gissing [Ibid] was a decision of the House of Lords. Their Lordships in that case considered the claim of a wife who had been married to her husband when they were both in their early twenties. The wife worked as a secretary in a firm of printers and assisted the husband in obtaining employment with the printers. In 1951, a house was purchased in the name of the husband. The purchase price was £2965.00 This was met by a mortgage taken in the husband’s name as well as a loan which the printers gave to the husband. The wife contributed by paying £220.00 for furnishings and the laying of a lawn.

 

48. In November 1961, the husband left the wife. He told her that the house was hers and that he would pay the mortgage installments.

 

49. Buckley J. at first instance held that the husband was the sole beneficial owner of the house. The House of Lords allowed the husband’s appeal against the Court of Appeal, which had overturned Buckley J’s decision.

 

50. In the course of his judgment, Lord Diplock made this observation:

 

“In all previous cases about the beneficial interests of spouses in the matrimonial house, the arguments and judgments have been directed to the question whether or not an agreement between the parties as to their respective interests can be established in the available evidence.”  [Gissing v. Gissing [1970] 2 All ER 780 at 789 f]

 

51. Lord Diplock observed that this question passed over the first stage in the analysis of the problem:

 

“ Viz the role of the agreement itself in the creation of an equitable estate in property…” [Ibid at 789 f & g]

 

52. Lord Diplock continued:

 

“Any claim to a beneficial interest in land by a person, whether spouse or stranger, in whom the legal estate in land is not vested must be based on the proposition that the person in whom the legal estate is vested holds it as trustee on trust to give effect to the beneficial interest of the claimant is cestui que trust…” [Ibid at 789 g]

 

53. Having set out the law relating to resulting trusts, Lord Diplock said:

 

“…if at the time of its acquisition and transfer of the legal estate into the name of one or other (of spouses)… an express agreement has been made between them as to the way in which the beneficial interest shall be held, the court will give effect to it…” [Ibid at 790 b & c]

 

54. Later Lord Diplock had this to say:

 

“…What the Court gives effect to is the trust, resulting or implied from the common intention expressed in the oral agreement between the spouses that if each acts in the manner provided for in the agreement, the beneficial interests shall be held as they have agreed.” [Gissing v. Gissing [1970] 2 All ER 780 at 789 at 790 d & e]

 

55. Since the decision of the Court of Appeal in Aziz v. Harinarine [Aziz & Aziz v. Harinarine Civil Appeal 46 of 1987], English Law has moved apace. The English Courts have wrestled with the entitlement of cohabitants to an interest in the home. The principles were further developed in the decision of their Lordships’ decision in Lloyd Bank v. Rosset [Lloyd Bank v. Rosset [1990] 1 All ER 1111] in the early 1990’s, and more recently in the decision of the Supreme Court of the United Kingdom in Stack v. Dowden [Stack v. Dowden [2007] 2 All ER 929] and Jones v. Kernott [Jones v. Kernott [2012] 1 All ER 1266] in which Lady Hale and Lord Walker delivered a joint decision. In conclusion her Ladyship and his Lordship itemized the principles which ought to govern beneficial rights in the home.

 

 

STACK v. DOWDEN [2007] 2 ALL ER 929.

56. Both parties to the instant proceedings relied on the House of Lords’ decision Stack v. Dowden [Stack v. Dowden [2007] 2 All ER 929]. In that case, the parties began living together in 1983 in a house bought and conveyed into the name of the defendant, who was the female cohabitant.

 

57. Four children were born to the couple. The couple sold the original home and bought a second. The second home was conveyed into the joint names of the parties. The parties paid the purchase price partly from the defendant’s building society account, partly from a loan to both parties, secured by a mortgage and two endowment policies: one in the defendant’s sole name and the other in joint names. The mortgage interests and joint endowment policy premiums were paid by the claimant. The mortgage was repaid by four lump sum payments. The defendant made the larger contribution.

 

58. The couple separated in 2002. The claimant, the male cohabitant sought an order for sale of the property and equal division of the proceeds of sale.

 

59. The principle expounded by their Lordships in the UK Supreme Court was stated by Baroness Hale. Lady Hale stated firstly that where there is joint legal ownership, the law presumes joint beneficial ownership. At page 950 of the Report, Lady Hale had this to say:

 

“ The search is to ascertain the parties’ shared intentions, actual inferred or imputed with respect to the property in the light of their whole course of conduct in relation to it.” [See Stack v. Dowden [2007] 2 All ER 929 at 950 a.]

 

60. The burden is carried by the person who seeks to show that the parties intended their beneficial interest to be different from the legal. This would invariably be the party who seeks to contend that he is entitled to more than half of the beneficial interest as a result of his contribution to the purchase price of the property. In this way, the common intention trust differs drastically from the classic resulting trust, where the burden of proof is carried by the party who benefits from the contribution. In the case of the resulting trust, it is presumed that a person who contributes to the purchase of property did not intend to make a gift and is entitled to the benefit of a resulting trust in the property in proportion with his contribution. [See the definition of the resulting trust by Lord Browne-Wilkinson of Westcleutche v. Islington [1996] UKHL 12] In order to displace the presumption by evidence, it is the recipient and not the contributor of the gift who carries the burden of proof.

 

 

JONES v. KERNOTT [2012] 1 ALL ER 1266

61. In Jones v. Kernott [Jones v. Kernott [2012] 1 All ER 1266] their Lordships laid down the following principles, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests. The principles which were laid down in Jones v. Kernott [Ibid] may be found at paragraph [51] of the report. [Ibid at 1280 c & d]

 

(1) “The starting point is that equity follows the law and they are joint tenants both in law and in equity.

 

(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.

 

(3) Their common intention is to be deduced objectively from their conduct:

 

“the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party” (Lord Diplock in Gissing v. Gissing [1971] AC 886, 906). Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden, at paragraph 69.

 

(4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, ‘the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property.’ Chadwick LJ in Oxley v. Hiscock [2005] FAM 211, paragraph 69. In our judgment, ‘the whole course of dealing…in relation to the property’ should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties’ actual intentions.

 

(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)) [Lady Baroness Hale and Lord Walker].

 

 

REASONING AND DECISION

62. In these proceedings, the parties are both named as legal owners of the subject premises by a Deed of Lease which had been executed in the year 2002.

 

63. On the strength of the terms of the Deed, the claimant seeks a declaration that she is beneficially entitled to one half share in the premises. In keeping with the decision in Jones v. Kernott [Jones v. Kernott [2012] 1 All ER 1266], the claimant is entitled to stand on the presumption that equity follows the law and that joint beneficial ownership follows joint legal ownership.

 

64. The defendant has resisted this claim by reference to recent learning on the rights of cohabitants in the home and by reference to the history of the relationship between the parties. In contending that the beneficial interest in the home differs from the legal ownership, the defendant carries the evidential burden of displacing the presumption which was laid down in Jones v. Kernott [See paragraph 57 Supra, setting out the principles expounded in Jones v. Kernott [2012] 1 All ER 1266]. The defendant’s burden would be to prove that the parties had arrived at a common intention that their beneficial interest would differ from their legal. Such intention could be shown to have been formed at the time of acquisition or that the parties later formed a common intention that their respective shares would change.

 

65. The Court of Appeal of Trinidad and Tobago in Aziz v. Harinarine [Aziz & Aziz v. Harinarine Civil Appeal 46 of 1987] considered the law which was applicable in claims of present kind. The Court of Appeal applied the learning expounded by their Lordships in Gissing v. Gissing [Gissing v. Gissing [1970] 2 All ER 780].

 

66. Since that time the law has made great strides and the principles initially expounded in Gissing v. Gissing [Ibid] have evolved and have been reformulated by the Supreme Court (UK) in Stack v. Dowden [Stack v. Dowden [2007] 2 All ER 929] and Jones v. Kernott [Jones v. Kernott [2012] 1 All ER 1266]. Both parties in these proceedings have agreed as to the applicability of both Stack v. Dowden [Stack v. Dowden [2007] 2 All ER 929] and Jones v. Kernott [Jones v. Kernott [2012] 1 All ER 1266].

 

67. According to the principles expounded in Jones v. Kernott [Jones v. Kernott [2012] 1 All ER 1266], the law begins with the presumption that joint beneficial interests will follow joint legal interests. Accordingly, where a deed invests the legal interest in property in two (2) parties, the law presumes that the beneficial interest will also be held jointly.

 

68. This is of course only a presumption. It can be displaced by evidence of a common intention discernible at the time of acquisition. Departing from earlier learning on the subject, their Lordships in Jones v. Kernott [Ibid] recognized that an initially held common intention may be changed in the course of a relationship.

 

69. The onus of proving the common intention or its change is carried by the party who asserts that the beneficial interest differs from the legal interest.

 

70. In these proceedings the legal interest was invested in the parties by the Deed of Lease executed in the year 2002. Learned Counsel for the defendant has contended that this was the time of acquisition.

 

71. Whereas it is accepted that 2002 was the date of acquisition of the legal interest, it is my view that the process of acquisition began in 1985, when the parties embarked on the undocumented relationship with the NHA by paying a down payment of eight thousand dollars ($8,000.00) followed by a monthly installment of nine hundred dollars ($900.00). It is my view that the Court ought to consider the history of this matter from 1985, even if the parties were not at the time legally entitled to the property.

 

72. In 1985, the clear common intention was joint beneficial ownership. Although there was no express agreement, such intention was clear from their conduct. The whole of the down payment was made by the claimant. However, the defendant stated under cross-examination that he gave her his part “over time”. The defendant stated that at this time he intended that the property would be a family home.

 

73. The involvement of the claimant continued with her responsibility for the mortgage payment until the loss of her employment in 1987. At this time, the defendant assumed responsibility for mortgage payments including payments of the arrears.

 

74. In my view, the evidence does not suggest a change in the common intention at this time. The parties continued to take care of both the home and their children.

 

75. In 1995, the claimant left both the home and the relationship. In my view the evidence suggests that she did not look back. Even if the claimant left because of the defendant’s abuse, she took no steps at that stage to secure her interest in the property. She omitted to seek declaratory relief or to seek an extension of time in order to avail herself of remedies under the Cohabitational Relationships Act [The Cohabitational Relationships Act, Chapter 45:55] which came into force 1998. She omitted to make any payments or to seek to improve the property in any way. It was not until 2009, some fourteen (14) years later that the claimant took steps to assert her rights.

 

76. Meanwhile, the defendant continued to occupy the property. Children grew to maturity. The defendant got married. His relationship with the property continued. He made extensive improvements and maintained the property by landscaping and triennials paintings.

 

77. From the evidence before me, it is my view that it is possible to infer that there was a change in the common intention from 1995 when the relationship came to an end. At that time the defendant became solely responsible for the property. It is my view that the discernible common intention was that the claimant intended that the defendant be left to pay the mortgage and upkeep the property on his own and thereby he would undertake the whole of the beneficial interest.

 

78. Even if I am wrong in this analysis, the learning in Jones v. Kernott [Jones v. Kernott [2012] 1 All ER 1266.] provides the measure which the Court ought to take where it is impossible to ascertain by direct evidence or by inference what was the actual intention of the parties. In such circumstances the Court will apportion shares according to what the Court considers fair having regard to the whole course of dealing between the parties in relation to the property. [See paragraph 57 Supra]

 

79. In my view, when one considers the whole course of dealing of the parties in relation to the property, one finds that from 1987 to the present, the defendant had undertaken the care and maintenance of the property including outgoings and mortgage payments. In my view, it would be manifestly unfair to declare that the claimant is entitled to a half share in the property. The share to which she may be entitled, if any, must be extremely small, having regard to the whole course of the parties’ dealing with the property.

 

80. In any event, the claimant has not sought any compensation for her interest, but has sought a declaration that she is entitled to one half of the beneficial interest. In my view, the claimant is not entitled to the declaration sought. The claim ought to be and is hereby dismissed.

 

 

ORDER

81. The claim is dismissed. There will be no order as to costs.

 

Dated this 16th day of November, 2015.

1. Dean-Armorer

Judge