PROPERTY CHAMBER

FIRST -TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF NO 2015/0420

 

BETWEEN

BENJAMIN JACOB MCLAVERTY

Applicant

and

 

 

FIONA MARY CASSIDY

 

Respondent

 

 

Property address: 4 Greenwood Avenue Stockport SK2 6AW

 

Title number: GM793810

 

Before: Judge Professor Robert M. Abbey sitting at Manchester Asylum and Immigration Tribunal Piccadilly Exchange Piccadilly Plaza Manchester M1 4AH on 1 ^st March 2016

 

Applicants Representation: In person

 

Respondents Representation: Andrew Ayres Solicitor of Ayres Waters

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

1. KEYWORDS - Application for a Restriction - claim to a beneficial interest in Equity - extent of direct and indirect contributions to justify the claim - HELD - Sufficient evidence of direct contributions to substantiate such a claim - Sufficient evidence of common intention - Land Registry ordered to allow the application for restrictions

 

Cases referred to

Lloyds Bank Plc v Rosset [1991] 1 AC 107

Stack v Dowden [2007] UKHL 17

 

THE APPLICATION

1. The Respondent is the sole registered proprietor of the registered freehold property being 4 Greenwood Avenue Stockport SK2 6AW ("the disputed property") as the same is registered at the Land Registry with titles absolute under title number GM793810. The Applicant has applied to the Land Registry on form RX1 to enter two restrictions in Form A and Form II on the title to the disputed property to protect a claimed interest in the disputed property. The date of this application was 5 ^th November 2014 and the application in form RX1 was dated 2 November 2014. An objection to the application was made on behalf of the Respondent and which was lodged at the Land Registry by letter dated 26 ^th November 2014 and the date of the objection was 1 ^st December 2014.

 

2. Thereafter it was not possible for the dispute regarding the restriction applications to be resolved and consequently the matter in dispute was referred to the First-tier Tribunal (Property Chamber; Land Registration Division) pursuant to s. 73(7) Land Registration Act 2002. The case now falls to me to determine. Both parties had been given lengthy notice of the date of this hearing. At the hearing before me both the Applicant and the Respondent appeared and the Respondent was represented by her solicitor, Mr Ayres, the Applicant appearing in person.

 

SUMMARY OF THE APPLICANT'S CASE

3. The Applicant claims that that he made a financial contribution to the acquisition and improvement of the disputed property and as such claims a beneficial interest in the disputed property arising from a constructive and or resulting trust capable of protection by a restriction in Land Registry Form A and form II. The Applicant also claims that it was always the intention of both parties that they would have a joint interest in the disputed property.

 

4. First to give evidence was the Applicant. He confirmed that the relationship started in 2001 and they moved in together in 2002. In 2008 they decided to buy a house but it would be put in the name of the Respondent only. This was because the Applicant says he had outstanding debts and had a poor credit history and might have been rejected for a mortgage as a consequence. In October 2008 an offer was accepted for the purchase of the subject property and on the 27 November 2008 contracts were exchanged. The deposit for the purchase amounted to £20,000. The Applicant accepts this was paid by the father of the Respondent. However, he also says that of that sum £20,000 was reimbursed by a cheque from his father that was subsequently paid direct to the father of the Respondent.

 

5. The Applicant also asserted that he made regular payments to the Respondent on a monthly basis and also paid for one off items such as a new boiler, (at £1800) and double glazing (at £2000). I was able to see regular payments from copy bank statements and was told these started at £350 and ended up at £700 per instalment. The Applicant said these payments were towards the mortgage and other outgoings.

 

6. Next to give evidence for the Applicant was his mother Mrs Marion McLaverty. She confirmed that after the Respondent became pregnant she met with her at the Harvester Restaurant in Solihull. They discussed the purchase of a house. She then asserted that the Respondent confirmed the problem regarding the Applicant's poor credit rating and said that as a result the property would be in her name alone but that "when the purchase was finalised his name would be put on the deeds of the house".

 

7. She then confirmed that around that time her husband had retired and decided to give four of their children a lump sum of £10,000 each to be funded from the pension monies. Mrs Mclaverty asserted that the sum was to be given to the Applicant on the clear understanding that it would be used for the deposit and would be matched by the Respondent's father. She then confirmed the payment was indeed made to the father for this purpose.

 

8. The third witness for the Applicant was John McLaverty, the Applicant's father. He asserted that when he retired from CAFCASS (Children and Family Court Advisory and Support Services) he and his wife decided to use the retirement lump sum to make gifts of £10,000 to four of their children. Thereafter he confirmed his wife's evidence regarding the circumstances of the purchase set out in the previous two paragraphs. What he did say was that "due to the timing of the house purchase and the administrative arrangements for my retirement, I believe that our contribution was a short time after the deposit was needed". He went on to say that the cheque for £10,000 was made payable to either the Respondent or the Respondent's father. I was able to see bank entries showing a payment of £10,000 at the time in question but the details of the recipient is not clear.

 

SUMMARY OF THE RESPONDENTS' CASE

9. The Respondent claims that there was no agreement that the Applicant would acquire an interest in the disputed property. The Respondent denies that the Applicant made any financial contribution to the acquisition of the disputed property including any contributions to any deposit payment or mortgage repayments. There was no agreement between the parties concerning repayment or that the Applicant would acquire a beneficial interest in the disputed property.

 

10. First to give evidence was the Respondent. Following on from the complete denial set out above the Respondent set out the details of the deposit payment and the fact that the full £20,000 was paid by her father. She accepts that a payment was made of £10,000 by the Applicant's parent and that the Applicant did pay this money to her father but nothing was said to link the payment to the purchase. She says it was never suggested that it was a contribution to the deposit. As far as the Respondent was concerned she believes it was pure coincidence that the Applicant's parents decided to give their children money at the same time as the house purchase was coming to completion.

 

11. She asserted that the payment was made by "the Applicant to show a readiness to accept a measure of financial responsibility for his family". In cross examination she maintained that the payment to her father was "showing commitment" She says her father banked the money so that she would have something to fall back on should times prove difficult.

 

12. The Respondent asserted that she was solely responsible for the payment of the mortgage instalments. The Applicant did pay towards other household expenses such as utility bills. She also accepted that the Applicant did pay for the new boiler and for the double glazing.

 

13. Next to give evidence for the Respondent was her father Thomas Cassidy. He asserted that the Applicant's claim was untrue because he gave money to his daughter to enable her to buy the subject property. He says he told his daughter he would help with the purchase but because of the Applicant's poor credit history he would only help her if the house was purchased in her name alone. He confirmed that he did indeed pay her £20,000 at the end of October 2008 to assist with exchange of contracts in the following month. He stated that when he paid the £20,000 he was not expecting any money back from either the Applicant of from his parents.

 

14. After contracts were exchanged, he says in early December, the Applicant and the Respondent handed to him a cheque for £10,000 that had come from the Applicant's parents. He says the first he knew of the payment was when he was given the cheque. He was of the view that the cheque had nothing to do with the house purchase. He says he was surprised to be given the cheque. He paid it into the bank. He said that he thought the money would be there for his daughter and any grandchildren "for a future rainy day". He says he still has the money.

 

THE LAW

15. Before dealing with the factual issues relating to this claim to a beneficial interest, it is necessary to consider the relevant questions of law. The issue I must decide is whether restrictions should be allowed to protect an interest the Applicant might have in the disputed property under section 42 (1) (c) of the Land Registration Act 2002. The disputed property is currently registered at H M Land Registry in the sole name of the Respondent.

 

16. With regard to the burden of proof, in Stack v Dowden [2007] UKHL 17 Baroness Hale at paragraph 56 stated

 

The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all". And at paragraph 68 Baroness Hale went on to say, "The burden will therefore be on the person seeking to show that the parties did intend their beneficial interest to be different from their legal interests and in what way. This is not a task to be lightly embarked upon."

Accordingly it is for the Applicant in this dispute to show that there is sufficient evidence to show on the balance of probabilities that he had an interest in the disputed property.

 

17. The Applicant is making a claim to a part of the ownership of the disputed property by reason of financial and other contributions made by the Applicant. He is in effect as a result of various payments and actions claiming an equitable interest in the Property. In the case of Lloyds Bank Plc v Rosset [1991] 1 AC 107 it was made clear that an equitable interest in a property would only arise if it could be shown that there had been a common intention that the Applicant would own a share in the land. In the absence of any express agreement then an act by the claimant or the conduct of the parties might assist the court by allowing it to infer a common intention. It would thus give rise to an interest under a constructive trust.

 

18. I can find no evidence of an express written agreement between the parties. Nothing in writing was produced in evidence in the way of a trust deed or the alike. In these circumstances I am unable to conclude that there was any form of express agreement. I am therefore required to consider what might have amounted to a contribution to the acquisition of the disputed property arising out of the conduct of the parties. The search that must be conducted is to decide what constituted the agreement, if any, that was made between the parties and not what might have been considered as fair. In Stack v Dowden [2007] UKHL 17 at paragraphs 60 and 61 Baroness Hale went on to say,

 

"The search is to ascertain the parties' shared intentions, actual inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it .... This search cannot be conducted under the umbrella of what the Court thinks is fair."

 

19. The House of Lords advanced some guidance in Stack v Dowden with regard to " divining the parties' true intentions." A list of possible items of conduct for consideration was set out by Baroness Hale of Richmond in paragraph 69 including several factors other than financial contributions. This included the nature of the parties' relationship and if they had children. In effect I must survey the totality of the parties' conduct in relation to their possible ownership and actual occupation of the disputed property and their sharing of its "burdens and advantages". However each case will turn on its own facts and I must now apply the facts of this dispute to the law set out above.

20. From the facts before me it would seem that there has been a direct contribution by the Applicant. I am first required wherever possible to focus upon direct contributions. (Lord Bridge in Lloyds Bank Plc v Rosset [1991] 1 AC 107 stated that

 

" Direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments will readily justify the inference necessary to the creation of a constructive trust. But as I read the authorities, it is at least extremely doubtful whether anything less will do", ibid at 133).

 

The Applicant has said that with the assistance of his parents he paid £10,000 towards the deposit. I prefer the evidence of his parents in this regard. It seems to me more than mere coincidence that the payment of exactly £10,000, representing 50% of the deposit was paid to the Respondent's father close to the time that the deposit was paid for the purchase of the property.

 

FINDINGS OF FACT

21. This is a dispute that has arisen out of the personal circumstances of the parties to this dispute. The parties cohabited for a lengthy period of time during which the Applicant did reside at disputed property. The relationship between the parties subsequently ended and the Applicant subsequently vacated the disputed property.

 

22. I am satisfied from the evidence put before me that the Applicant did indeed make an initial payment towards the deposit. I am therefore satisfied that there was a common intention in regard to the joint acquisition of the disputed property and I must prefer the evidence from the Applicant's father and mother in this regard.

23. The Respondent accepts that the Applicant did pay for a boiler replacement and for double glazing. This would seem to underpin his claim to a common intention between the parties. However, I am not satisfied that the instalment payments he made were towards the mortgage as it seems to me at the level of the payments made that they would be insufficient to support this claim and were really monies to meet utility bills and other outgoings for the support of his family.

THE DECISION

24. Having regard to all the above issues I am satisfied that there is validity in the Applicant's claim. It would seem from the evidence before me that there is convincing evidence of the initial deposit payment made by the Applicant through his parents towards the acquisition of a limited interest in the disputed property and thus evidence of a common intention between the parties for him to gain an interest in the disputed property.

 

25. In the light of the foregoing I am simply required to consider whether a Land Registry Form A restriction and a form II restriction are appropriate and on the evidence and for the reasons set out above, I believe it is. Accordingly, in my judgement the application for the restriction should be allowed and I will so order. In regard to the Land Registry application I am simply required to consider whether a Form A restriction is appropriate and whether a form II restriction is appropriate and on the evidence I take the view that they are.

 

26. At the end of the hearing I did mention to the parties that costs order can be made in this jurisdiction. Costs normally follow the event. So the general rule therefore is the successful party ought to receive their costs, as is the case in this dispute and as such the Applicant will be entitled to an order for costs. Therefore, In the light of all the circumstances of this dispute I think it is appropriate that there be an order for costs against the Respondent and I will so order. However, it should be remembered that the Applicant being a litigant in person he is only entitled to his out of pocket expenses. I will order that the Respondent do pay the Applicant's costs on this basis from the date of the reference of this dispute to the Tribunal, such costs to be agreed between the parties and failing such agreement to be assessed and I will if required give directions should there be no agreement.

 

Dated this 21 ^st day of March 2016

 

 

 

 

Judge Professor Robert M. Abbey

By Order of The Tribunal