Article: Beneficial Interests of Cohabitees – An End to the “Never Ending Story”? R v Lam [2022] 4 WLR 57

In order to get a beneficial interest in a property, what does a cohabitee who is not on the title have to prove against the cohabitee who is?

This is a question which arises frequently for property lawyers – and not just for those advising in the family context. Beneficial interest claims are often asserted against secured creditors, trustees and executors.

Since the problem emerged in the 1960s, our appellate judges have never authoritatively settled a comprehensive list of ingredients for a constructive trust in the above type of “sole owner” case. Indeed, judicial treatment of co-ownership and implied trusts has been referred to, in the writer’s view very aptly, as “The Never Ending Story”[1].

What has a criminal case got to do with this? R v Lam was a Proceeds of Crime Act 2002 case, where the Court of Appeal decided that the judge was wrong to exclude non-financial contributions to the household as matters which could support the beneficial interest claim. On the face of it, the case is binding authority which standardises the approach to the question of inference in joint names and sole name cases.

Facts

Mr Lam was convicted of fraudulent evasion of VAT. Confiscation proceedings were brought against him and the only asset available to meet an order was the matrimonial home, 11 Cavendish Road, which was in his sole name. Mr and Mrs Lam both contended that the property was owned 50:50 beneficially. Mrs Lam worked as a full-time mother, running the house, looking after the children and seeing to the day-to-day bills. She could not point to any financial contribution to the purchase or the mortgage; the latter being met by Mr Lam’s earnings, albeit paid from a joint account. There was no evidence about any express discussion about ownership. All that Mrs Lam could say was that it was their intention generally that the home should be shared.

Issues

The trial judge found that there was no constructive trust. She rejected the proposition that Mrs Lam’s contribution to the family could be taken into account. On appeal Mrs Lam argued that this was wrong and that the judge should have taken into account the fact that she had given up her career to look after the children and to allow Mr Lam to generate income.

Decision

The Court of Appeal agreed with Mrs Lam. It was an error of law for the judge to be entirely concerned with whether Mrs Lam had made a financial contribution. It was not the case that contribution to the family was irrelevant in a sole-name case, as opposed to a joint-name case. Crucially, the Court said (at [19])

“The exercise is the same in both types of case: to ascertain whether the common intention of the parties was that the legal ownership of an asset should be held on trust, and if so what the terms of the trust were”

Because the judge had misapplied the law by concentrating only on financial contributions, the Court of Appeal re-evaluated the evidence. It found that Mrs Lam had a 50% beneficial interest, having regard to Mrs Lam’s contribution to the family and the fact that other properties had been purchased in joint names.

Discussion

The problem facing any property lawyer tasked with evaluating a cohabitee constructive trust claim is that the two leading cases, Stack v Dowden [2007] 2 AC 432 and Jones v Kernott [2012] AC 776 were decisions about beneficial interests where the claimant was already on the title. Strictly speaking, therefore, they were only about the quantification of shares already held.

Where the claimant is not on the title, the onus is on him or her to prove an interest in the first place: see Stack at [56]. How, though? The last House of Lords authority about a sole name case was Lloyds Bank v Rosset [1991] AC 107. The starting point for the “common intention” necessary for a constructive trust is the speech of Lord Bridge in at p 132 G. His Lordship said that there either has to be an express discussion: “… however imperfectly remembered or imprecise…” or absent that, direct financial contributions which allow the common intention to be inferred. In either case, there has to be detrimental reliance.

Lord Bridge’s “test” is much easier to apply than Lady Hale’s list at [69] in Stack of the matters which can be taken into account in quantifying shares. Some of the matters in the list are rather vague, e.g. “the parties’ relationship”. Why not stick to Rosset in sole name cases, then? The problem is that in Stack and in Jones, Lady Hale and Lord Walker doubted whether Lord Bridge’s restriction to direct financial contributions was right: see Stack at [26] and [63]. They implied that there would be a single regime in both types of case: see Jones at [16].

It is therefore unclear what had to be proven in a sole name case to get a judge to infer a beneficial interest where there was no express agreement. If Lord Bridge was right, it had to be direct financial contributions. If Lord Walker and Lady Hale are right, a much wider range of conduct can be relied on.

In decisions subsequent to Stack and Jones judges have tended to assume that Lord Walker and Lady Hale’s principles are applicable to sole name cases. However, in practice there has been little sign that the courts are willing actually to go beyond the limits of Lord Bridge’s test when making inferences about common intention.

The significance of R v Lam is that the Court of Appeal has now stated expressly and as part of its ratio that the wide set of factors referred to by Lady Hale in Stack at [69], including general contribution to the household, can form the basis, in a sole name case, of an inference of an agreement to share where there is no evidence of any express agreement. R v Lam is binding authority to that effect in the civil courts.

Practical Points

Although R v Lam establishes that the factors which can be relied on in support of a beneficial interest may be very wide, it is important still to bear in mind the following for sole name cases

• The Court still cannot simply award an interest on the basis that that is fair to do so, or because the relationship has been a long one: see Lady Hale in Stack at [61]. This is a point which can need emphasising to our professional and judicial colleagues who work predominantly in the family jurisdiction.
• Although the Court is not limited to Lord Bridge’s factors in Rosset, if you are formulating a claim, use it as a starting point. A judge will be more confident about making the finding if the facts fit into that “test”.
• Remember that detrimental reliance is still a necessary ingredient: see O’Neill v Holland [2021] 2 FLR 1016
• Most importantly, keep the focus on what a given aspect of the parties’ conduct can actually prove in terms of their intention as to ownership. As pointed out recently by Nugee J in Amin v Amin [2020] EWHC 2675; this is “the ultimate question”. Just because general contribution to household expenditure is part of Lady Hale’s “relevant context” does not mean that the judge will actually find that a cohabitant who pays for the shopping must have been intended to be a co-owner in equity of the house. Similarly with building work or taking part in the family business: see Pillmore v Miah [2020] BPIR 417 at [27].

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[1] See “The Never Ending Story – co-ownership after Stack v Dowden” by Martin Dixon Conv 2007, Sept / Oct, 456-461 and “The Still not Ended Never Ending Story” by the same learned author at Conv 2012, 2, 83-86.