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Most unmarried couples in a dispute over property must rely upon TOLATA [1996], which deals with trusts of land (whether express, implied, resulting or constructive).
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The CA has re-emphasised existing principles to establish the existence of a constructive trust and deal with disputes concerning beneficial ownership of property.
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The basic rule is that joint tenants will hold a property in equal shares (50/50). But, it is important to appreciate that that is a rebuttable presumption – accordingly, it is possible for those percentages to change.
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The practical application of the doctrine of election was recently clarified. This applies when someone gifts property to a beneficiary, but by the same instrument gives certain property belonging to that same beneficiary to a third party.
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Can you spot the flaw in this deed? Brother and Sister bought a house in 1988 in their joint names. Brother provided £72,000 and Sister £2,000, with the balance being raised on mortgage.
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We all know that the ‘right of survivorship’ applies when there is a joint
tenancy (ie if there are two joint owners, and one dies, then the other will
succeed to the deceased’s share). To prevent that happening, the
remedy is simple – the joint tenancy must be ‘severed’, so it then
becomes a tenancy in common (with each owner then having a distinct
share in the property which will not pass to the survivor).
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It is the HL decision in Stack that has focused much recent interest on
the topic of unmarried couples (whether they be in a relationship, or
mere friends) who buy a property together. The case involved a couple
who bought a property in 1993 for £190,000 financed by a joint
mortgage of £65,000, plus the proceeds of sale of their first property of
£67,000 (in her sole name), and £58,000 cash (from a building society
account in her sole name).
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If you are acting for an unmarried couple who are buying a property, then
what are their respective beneficial interests? This is something that
you, as the conveyancer, should take instructions on.
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 James Brown and Mark Pawlowski analyse a problem regularly
facing couples wanting to secure a home for themselves and,
at the same time, provide an inheritance for their children.
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The rules on joint Ts can operate particularly harshly within the rent sector
(especially with public Ls). For instance, T may think he has security of tenure
under a secure or assured tenancy and then suddenly receive a letter from his
social L informing him that he no longer has the right to occupy. This is because
the other joint T has given notice to quit (probably encouraged by L, who lacks
the resources or inclination to provide separate homes for each of the joint Ts).
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If you act on behalf of joint buyers, then you should always check what the joint purchase arrangements are (ie is it a joint tenancy or are they to be tenants in common?). So:
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The courts can use the equitable device of a ‘constructive trust’ to give a
property interest to someone who does not have ‘legal’ rights. Typically, this
will be done when the relationship between an unmarried couple comes to
an end, so as to give the non-owner a stake in the property. Likewise, it can
be used to protect the interest of a married (unmarried) partner when a
mortgage lender seeks possession of the property (or when a
creditor/trustee in bankruptcy seeks possession).
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Tenancies in common are more popular than they used to be. For instance,
modern tax planning has encouraged severance of joint tenancies to ensure
the IHT nil-rate band is used on the first death, whilst, at the same, time
the increase in divorce has led to more couples wanting to differentiate between
their individual assets.
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 Katherine Neal questions whether, in today's world, a trust of land is sufficient protection for personal representatives
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