England and Wales Land Registry Adjudicator

 

PROPERTY CHAMBER

FIRST-TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

IN the matter of a reference from hm land registry

 

LAND REGISTRATION ACT 2002

 

REF No 2015/0418

 

BETWEEN

 

(1)    STEPHEN MACDONALD

(2)    WENDY MACDONALD

Applicants

A ND

 

CARMEL JOAN ANDREWS

 

Respondent

 

 

Property Address: 54 Clydesmuir Road, Tremorfa, Cardiff

Title Numbe r: WA412088

 

Before Judge McAllister

Cardiff Employment Tribunal

16 February 2016

 

Representation: the Applicants appeared in person; Mr Guy Moore of Counsel instructed by Spicketts Battrick Law Practice appeared for the Respondent.

 

DECISION

 

Introduction

 

1. The Applicants, Mr and Mrs McDonald, are respectively the son in law and daughter of the Respondent, Mrs Andrews. For ease of reference, I will refer to them as they are known in the family; Wendy, Mac, and June. The dispute concerns the ownership of the beneficial interest in 54 Clydesmuir Road, Cardiff ('the Property') which was purchased by Joan on 12 April 1988. June had been a secure council tenant and benefited from a discount of 38% of the then market value (£18,500), resulting in the purchase price of £11,470.00.

 

2. By an application dated 30 July 2014 Wendy and Mac applied for a restriction in standard form A. The short description of their alleged interest was as follows: ' Trust interest on payment of mortgage on property. We made an agreement in 1987 that we would pay all bills (apart from electricity). All maintenance etc. Receiving the property when mortgage was cleared or Mrs Andrews passed away.' It was also stated that a payment of £4,000 was made towards the cost of a local authority grant in 1994. Further details were given in a Statement of Truth. In essence, it was said that the Property would be purchased 'by proxy' for them, on the understanding that June could live there for the rest of her life.

 

3. June objected to the application to enter a restriction and the matter was referred to the Tribunal on 22 June 2015. I heard the case on 16 February 2016. I heard evidence from Mac, June, and Louise Davis (Mrs Andrew's daughter and Mrs MacDonald's sister) but not from Wendy, who was present throughout. By the end of the hearing, Mac put his case in a different way: he stated that the agreement was that the Property would pass to him and to Wendy on June's death. It was not his case that they would own the Property immediately. I should add that, even as previously put, the case was far from an equivocal assertion that Wendy and Mac owned the beneficial interest in the Property from the outset.

 

4. For the reasons set out below I will order the Chief Land Registrar to cancel the application made by Wendy and Mac. In my judgement, they do not have any beneficial interest in the Property, nor any other interest in the Property.

 

 

 

 

 

Background and evidence

 

5. June was born on 10 August 1930. She was married twice, and had a number of children, including two who died, Linda, and Tracey, as well as Michelle (from whom she is estranged) Wendy, Louise and Georgina and Mandy.

 

6. Mac was working in the merchant navy in the early 1980s until he left in June 1987. He then worked for a company called Ocean Maintenance Limited. His case is that he began helping his mother in law financially in 1985/1986. At the time she was working as a cleaner in the Cardiff Royal Infirmary but was, on his evidence, struggling to make ends meet. Her husband had died in July 1986. Wendy moved in with her mother in the summer of 1987, when Mac found himself in financial difficulties, and was not able to pay the mortgage on his own property.

 

7. He had stayed with his mother for a while, and then, on his account, was persuaded by Wendy and June to move in with them. June's evidence is at odds with his recollection: she had agreed to accommodate Wendy at a time when Wendy's relationship with Mac was in very real difficulty. She was away at the time, and came back (she had been staying with another daughter, Georgina) to find him living in the Property ('with his feet under the table' as she put it). Mac then moved in without her clear agreement, but she accepts that she tolerated the situation for a great number of years. The arrangement, in the event, lasted 24 years.

 

8. Mac's evidence regarding the purchase was as follows. He said that June suggested that the Property be purchased in her name and that they would all live there together until she died, when it would become Mac and Wendy's. The discussions took place at the Property. He recalls two or three discussions to this effect. It was Mac who suggested that they should use a solicitor known to him, Roger Riley. He also stated that he went alone to see him, and paid him in cash for the conveyancing. He stated that he told him of the arrangement made with June, but accepts that there were no discussions about putting anything in writing or drawing up a trust deed. June's case, by contrast, is that she decided to exercise the right to buy when she realised that the mortgage repayments were less than the rent, and that no agreement was made as to the ownership of the Property. The rent June was paying in 1987 was approximately £104.00 per week: the mortgage repayments in 1994 (the earliest records available) were £85.00 odd per week. The decision to buy the Property had nothing to do with the fact that Wendy and Mac had moved in. Her daughter, Louise, confirms this, as appears below.

 

9. There is an issue as to whether Wendy and Mac paid the mortgage and all the utility bills (except electricity) as they allege. June's case is that she paid the mortgage at all times, except for a brief period between March 2001 and March 2002 when she asked Stephen to pay on her behalf. He did not do so, and arrears in the sum of £580.00 odd accrued by March 2002 which she then cleared with some money left to her by her husband. The payments were made by her in cash at the Council's offices at Marland House until the offices closed down in 2009. From then on, June gave cash to her daughter Louise who paid the Council by cheque. It is accepted that Mac paid a final sum of £400 to redeem the mortgage in September 2011. This, according to June, was the only payment he made, apart from contributions to the bills, and she was surprised to discover that he had made this payment. His evidence, however, is that he paid the mortgage throughout, giving June money in cash, either directly from him (he was then working as a taxi driver) or from Wendy's income. June accepts that he paid some of the utility bills, but submits that this was, in effect, payment for board and lodging.

 

10. Another factual dispute relates to the payments made to render the Property safe, following the receipt of a dangerous structure notice from the Council in 1993. Mac's evidence is that he contributed some £4,000 or £5,000 in cash to the cost, paying the contractors (the Council gave a grant for 65% of the work). June's evidence is that she paid for all the costs. The work remained incomplete until she could afford to pay.

 

11. Matters came to a head in 2011, when, on Mac's account, he discovered that the mortgage money was being, as he put it, diverted into Louise's account. Louise's evidence is that the argument (which was clearly very heated) arose when she discovered that neither Wendy nor Mac were paying any rent; she confronted Mac and this is why he and Wendy left the Property. They have not lived there since, but they have kept a key, and come and went. June spent increasing amounts of time elsewhere because of the tensions in the house. She accepted that they had all lived together in relative harmony for many years, but this changed. The locks were changed in July 2014, and neither Wendy nor Mac have been back since. She is now anxious to be able to sell the Property to allow her to move into more suitable, possibly sheltered, accommodation.

 

12. It is clear that Mac feels very strongly about the events which have happened, and has convinced himself that he has in some way been deceived or mistreated. He told me that he considered the Property to be his home, but that there was no need to put the Property in his and Wendy's name because Wendy was, as he put it 'comfortable with her mother'. As I have said above, at the end of the hearing, he accepted in any event that he has no present claim to any share of the Property: his case is, now, that he and Wendy are entitled to it on June's death.

 

13. June stated that she would have left the Property to Wendy in her will, but that her intentions have since changed. During the hearing a recording was played of a tape left by Joan for Mac. The context of the recording was an episode when June had left her bag in a car, and needed money or a lift to get back. The recording was made in March 2005. Mac relies on this in support of his case that there was an agreement that the Property would be left to (at least) Wendy on June's death, and this is why I have set out the relevant part.

 

14. June said this: ... 'And Mandy would not have come down to pick me up, but maybe you do not realise, Mac or Wendy, that Wendy had not long got in and there was an accident when she was coming home so that must have been bother. You always say to me that Mandy is your favourite, Mandy is your favourite. I do not have favourites.....ok I helped Mandy with the bill of food when she was on her own and trying to keep three jobs going but if there would have been a favourite, it would have been Linda because she was so gentle, never seen anything wrong with anyone and that is why I promised her that when you and Wendy broke up one time and your house was repossessed that Wendy would always have a roof overhead with me. Even when I am gone, the roof is there. The house is her's, ok. Louise has got her own house so she is ok. Michelle has got her own house and Mandy got her house. So this is yours.... But sometimes I feel I do not want to be here anymore, because I am always stuck in the middle.... I would like to be back with Michelle, I do not know what I have done. But there again it's families again. So I say one more time, can we put all this behind us and forget all this because at the end of the day, it was my fault. If I never left the bag in a car we would never have had this. Mac, I hope you hear this....'

 

15. Louise's evidence is as follows. She is now 50 years old. She had lived in the Property for a year or so, before Wendy moved in. She remembers her mother telling her that she was going to buy the Property, because the mortgage repayments would be cheaper than the rent. She was also told that Wendy was moving in on a temporary basis because she and Mac had split up, and Wendy had nowhere else to go. Louise knew nothing of any alleged agreement that Wendy and Mac would be entitled to the house, although she accepts that her mother discussed the possibility of leaving the Property to Wendy in her will. She knew that her mother was paying the mortgage: Wendy did not work for some four years after she moved in. Louse and her mother both worked at the Infirmary, so they talked frequently about what was going on at home. So far as Louise could make out, her mother was supporting the household, although she believed that Wendy and Mac were paying some rent, and only discovered that they were not six months or so before they moved out. This led to a heated exchange in a café (the argument referred to above), and it was then that, on her evidence, Mac made the first claim to the Property being his and Wendy's.

 

16. Louise knew that her mother always paid the mortgage in cash: she only ever dealt with cash. In March 2002 she told Louise that arrears had built up (at a time when she had asked Mac to make the payments) which were then paid off. When Marland House closed, Louise took £100 cash from her mother every month, and in turn paid a cheque to the Council. It was Louise who discovered, in September 2011, that the balance outstanding on the mortgage had been paid off: June had been left some money by her sister, and was planning on paying off the balance herself.

 

My findings

 

17. It is clear that there have been a number of difficulties within the wider family for a number of years, and although some of these have been referred to during the course of the hearing and in the documents, they are of little assistance to me in determining whether Wendy and Mac have any interest in, or claim to, the Property.

 

18. As I have said at the outset, Mac and Wendy's case altered during the hearing. I did not hear from Wendy (which is itself surprising) but I will assume that she and Mac speak as one on this. The emphasis changed from a claim to the ownership of the entire beneficial interest based, it was said, on an agreement in 1987, coupled with the payment of the mortgage repayments, and bills, to an expectation or belief that the Property would be left to Wendy and Mac on June's death.

 

19. It seems to me overwhelmingly clear that, in any event, Wendy and Mac could not have made out their claim to the beneficial interest based on the alleged agreement and payment of the mortgage and bills. The burden of proof is on them, and that burden has simply not been discharged. Where there is a conflict of evidence between Mac's recollection and that of June and Louise's, I prefer the latter. I found Louise, in particular, to be a careful and measured witness. Mac, by contrast, is clearly someone who, for whatever reasons, appears to be quick to take offence and to harbour grudges, with a tendency to convince himself of the rightness of his cause.

 

20. I do not accept that there ever was any agreement or suggestion that the Property would be bought, in effect, for Wendy and Mac. It seems to me far more plausible that June took advantage of the right to buy for financial reasons. I also find that she paid the vast majority of the mortgage repayments (save for £400,000 paid by Mac). As for the utilities, it is accepted by her that Wendy and Mac contributed. But, of course, they lived there rent free for 24 years. There is nothing, therefore, in the conduct of the parties to allow me to draw an inference that what is known as a common intention constructive trust arose in Wendy and Mac's favour.

 

21. The tape recording (which I listened to) merely shows that, at the time it was made, June was frustrated and disappointed by the family tensions and animosities, and indicated that she had planned, when Wendy moved into the Property in 1987, to provide a roof over her head and to leave her the house on her death. Neither this, nor any other fact relied on by Mac, gives rise to any claim that June is estopped from leaving the Property to whosoever she wishes. To use the relevant terminology of proprietary estoppel, there was no promise or assurance which was relied upon by Mac and Wendy to their detriment. To the extent that there was any indication by June that she intended to leave the Property to Wendy, this was no more than a statement of her then intention, which could be (and has been) altered as a result of the passage of time and changed circumstances. Moreover, the arrangement between the parties, far from being to Wendy and Mac's detriment, was very much to their advantage.

 

22. For all these reasons, therefore, the application to enter a restriction fails. This leaves the question of costs. June as the successful party is entitled to her costs in principle. If she wishes to pursue costs, a schedule in Form N260 or the like is to be served on Wendy and Mac and sent to the Tribunal by 15 April 2016. Wendy and Mac may then make such representations, or raise such objections, as they consider appropriate by 29 April 2016. I will then consider what order to make.

 

BY ORDER OF THE TRIBUNAL

 

 

Dated this 31 ^st day of March 2016