Joint property ownership and TOLATA claims.

The Law Society and Land Registry have today published a Practice Note in relation to joint property ownership. Whilst it has been addressed for all those involved with conveyancing it is also a good aide memoire for those of us who undertake TOLATA (Trusts of Land and Appointment of Trustees Act 1996) claims.

As a general rule it is always easier for our conveyancing colleagues completing the purchase of a property to explore how the property is to be owned. Generally this will be in joint names as joint tenants meaning that the survivor will automatically inherit the others share upon death.

However in today’s climate with more unmarried couples buying property, they purchase the property in joint names as tenants in common which means that they can determine their individual share holdings and do not automatically inherit upon death.

I say it is easier for the conveyancers as clearly purchasing a property together is usually a happy time where the relationship has an expectation of lasting and the parties are in a position calmly to set out their intentions.

This may not be the case when I find myself instructed at the end of the relationship or very close to it when emotions are sometimes running high or are strained and both parties have adopted positions of self interest. With no documentary evidence recording the parties’ intentions individual’s memories are relied upon for evidence.

This makes it difficult with regard to advising individuals following recent case law which it had been hoped would simplify matters but sadly has still left a degree of uncertainty in this area of law.

In Stack v Dowden the House of Lords stated that where there was no express declaration, the general presumption was to be that the property would be owned as joint tenants in equal shares UNLESS one party could show differently, but it would only be in exceptional or unusual cases that the court would be persuaded.

This case was then followed by Jones v Kernott where the Supreme Court broadly followed that approach but added, if, it could be shown that the parties intended to hold the property in separate shares, then the court would decide, based on the whole course of dealing between the parties in relation to the property, what those shares would be.

The advice is therefore simple for those buying or intending to buy a property, complete Form JO , for those that don’t then be prepared for potentially lengthy and costly litigation with by and large an uncertain outcome given current legislation.