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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The problem is common enough: a property is bought as a home for an unmarried couple who intend to live as man and wife; both make financial contributions to the property, although it is bought in one partner’s sole name and there is no express declaration of trust. How are the proceeds of sale to be divided?
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 Mark Pawlowski of the University of Greenwich examines a recent Court of Appeal ruling providing guidance on the application of constructive trusts in the context of the family home
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If partners acquire a property using partnership funds, then there is a presumption that the property is bought for the partnership (s21 Partnership Act 1890).
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The courts have for some time now attempted to reconcile the two aims of maintaining clarity of property rights and allocating shares in property which appear fair in the particular instance.
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We all know that cautions against dealings and inhibitions have been abolished, and that matrimonial interests should now be protected by notices (agreed or unilateral) or restrictions.
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