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.

A recent High Court decision is important because it involved joint tenants (an unmarried couple) who had bought a property and lived there together for nine years. The woman had paid the deposit, whilst the man had paid for an extension, with the couple sharing other bills and mortgage payments until the relationship broke down. After the man had moved out, the woman assumed sole responsibility, but the man eventually served a notice severing his joint tenancy and requesting his 50% share. The question then arose as to the extent to which their joint interests had changed when the man moved out of the property and bought his own home. The High Court upheld the County Court decision that the original presumption of 50/50 had changed when the man moved out and, on the facts, the woman was entitled to 90%.

The key point to appreciate is that the intention of the parties may change after the date of the original purchase. To that extent, the trust on which their shares are held may be regarded as ‘ambulatory’. What this means is that the court must therefore establish what the common intention was at the date of purchase, and then consider whether it has changed since then. Unless there is an express declaration dealing with their changed percentage interests, this will involve the court looking at the ‘whole course of dealing’, which may well involve looking at the conduct of the parties following the breakdown of the relationship. In this particular case, there was no clear indication as to how the shares in the beneficial interests had changed, and accordingly the right approach was for the court to look at what was ‘fair and reasonable’ (although it was not for the court to override the intention of the parties and simply impose what it regarded as ‘fair’). On the facts, it could not have been the intention of the parties for the man to have a significant part of the increase in value in the property that had arisen after the time he moved out, since that would be in addition to the increase he received in the value of his own house that he had bought at the time he moved out. On the facts, a 90/10 split was ‘fair and reasonable’.

What is really needed is clear guidance from the CA as to how the courts are supposed to approach these cases. However, what is clear is that the old idea of a mandatory 50/50 entitlement of a joint tenant is not correct – the courts will impute an intention if the circumstances chance. See Jones v Kernott [2009] EWHC 1713 (Ch) (access free at www.practicalconveyancing.co.uk).