English and Welsh Courts - Miscellaneous

IN THE LEEDS COUNTY COURT

		Claimant Defendant
		17 August 2007

1. Introduction

1. This case concerns property known as 8 Tyne Street, North Wing, Bradford BD3 0ER ("the property"). On 9^th October 1984 the property was let to Adassa Ritchie by Bradford Council at a rent of £15.00 per week. Adassa Ritchie lived at the property with the Defendant ("Richard Ritchie") the youngest of her ten children.
2. On 27^th February 1989 pursuant to the right to buy legislation Adassa Ritchie and Richard Ritchie purchased the property from Bradford Council at a discount from the market price. The property as valued at £12,150. The discount was £6,196 with the result that there was a balance of £5,954. The balance was raised by way of a 100% mortgage from Bradford Council. Adassa Ritchie was not then in employment and it is said that Bradford Council would not in those circumstances lend to her alone. Richard Ritchie was employed as a bus driver. Repayments under the mortgage were of the order of £60 per month over a 25 year period.
3. It will be necessary to look at the conveyancing documents in a little detail later in this judgment. For present purposes it is sufficient to state that both Adassa Ritchie and Richard Ritchie are described in the standard form transfer document as Transferees. There is, however no express declaration of the beneficial interests as between them. Both Adassa Ritchie and Richard Ritchie are jointly and severally liable to Bradford Council under the mortgage.
4. Adassa Ritchie and Richard Ritchie's title was duly registered at H M Land Registry under Title No WYK 436743. The Office Copy Entries contain a restriction to which it will be necessary to refer later in this judgment.
5. Richard Ritchie got married on 17^th June 1989. He continued to live at the property with his wife until the end of 1991. At that stage there were differences between his mother and wife so he moved out. His marriage broke down and he returned to live at the property in January 2003. He lived at the property with his mother till her death in June 2005 and has remained there since her death.
6. The mortgage instalments were paid monthly in cash at the Council Offices until April 2003. There are disputes as to the extent to which Richard Ritchie contributed to and/or paid them. In April 2003 Richard Ritchie's elder sister Jennifer Adekunle known in the family as Rose took control of her mother's finances and the mortgage was paid out of a joint account containing Adassa Ritchie's money with Abbey plc. Richard Ritchie however contends that he continued to make cash payments to his mother over this period. After Adassa Ritchie's death it is common ground that the mortgage and other outgoings were paid by Richard Ritchie.
7. Adassa Ritchie died intestate and thus her estate passes to her ten children. The only potential asset is Adassa Ritchie's interest in the property. There is a potential liability of about £5,000 under a credit agreement for some double glazing installed in the property in 2003.
8. Jennifer Adekunle and one her brothers have taken out Letters of Administration of the estate. In these proceedings they claim that Richard Ritchie has no beneficial interest in the property. They seek orders for sale so that the estate can be divided between the ten children. Richard Ritchie contends the property now belongs to him. He contends that it was held as beneficial joint tenants and that he is now entitled to the property by virtue of the doctrine of survivorship. In the alternative he contends that he has a beneficial interest in the property and/or a proprietary estoppel to enable him to remain in the property.
9. These issues require the court to consider the new approach to this sort of case advocated by the majority of the House of Lords in the recent decision in Stack v Dowden^[1] . In particular it is necessary to consider whether this is a case where there is a strong presumption of a beneficial joint tenancy; if so, is this one of those cases where the facts are so unusual that the presumption is rebutted and if so to what extent. I confess that I do not find these questions straightforward. It was for that reason that I reserved judgment at the end of the oral argument.

2. Representation

10. The administrators were represented by Tim Hirst instructed by Cadmans of Cleckheaton; Richard Ritchie was represented by Simon Stevenson instructed by Read Dunn Connell of Bradford.
11. Both Counsel produced full and helpful skeleton arguments. I am most grateful to them.

3. The Facts

3.1. Adassa Ritchie

12. Adassa Ritchie was born on 23^rd June 1931 in Jamaica. As already noted she had 10 children. Richard Ritchie, her youngest child, was born on 4^th July 1965. In 1967 she came to England with her husband. Her children followed later. In 1972 her husband died and she remained a widow for the rest of her life.
13. Details of her work record and income are sketchy. There is no doubt that she worked for some of her time in England. She did not however enjoy the best of health and by 1984 she had retired. I was told that she was living on benefit though I have no details of what benefits she was receiving. It is possible that she received some form of widow's pension. However, as her husband was in this country for 5 years before he died it seems unlikely that it was very large.
14. She was a Council tenant. All her children had lived with her until they left home. By 1984 the only child still living with her was Richard Ritchie, then aged about 19. He was employed as a bus driver.
15. Adassa Ritchie was a strong character who plainly knew her mind and was not afraid to express it. This was confirmed by her sister Vera Wright and by a number of her children who gave evidence of a number of complaints made by Adassa Ritchie on various subjects.
16. She remained on good terms with her children. Thus Jennifer Adekunle told me that she spoke to her mother nearly every day and would see her most weeks. Furthermore from about April 2003, as will appear below, Jennifer Adekunle organised Adassa Ritchie's financial affairs and organised improvements to the property for her benefit.

3.2. The Tenancy

17. Adassa Ritchie and Richard Ritchie moved to the property on 12^th October 1984. The tenancy agreement is dated 9^th October 1984. It grants a weekly tenancy of the property to Adassa Ritchie at an initial rent of £15.47 per week. Together with rates (£3.96) and sewerage charges (£1.20) the total weekly sum payable was £20.63.

3.3. The Purchase

Discussions

18. Under the provisions of the Housing Act 1985 ("the right to buy legislation") Adassa Ritchie became entitled to purchase the property at a discount. According to Richard Ritchie his mother expressed interest in some other properties. In reality, however, they did not look at any other properties and there was no possibility of buying anywhere else.
19. The property was valued at £12,150. By 1989 Adassa Ritchie was entitled to a discount of £6,196. Thus there was approximately £6,000 to be found to complete the purchase. Adassa Ritchie did not have £6,000. Furthermore Bradford Council was not prepared to lend her £6,000 due to her age (58) and financial position. According to Richard Ritchie his mother told him that she had asked other members of the family if they were in a position to help. They had commitments and were thus not in a position to offer help. There is some support for this version from Vera Wright who gave evidence on the second day of the trial. She told me that during a telephone conversation between herself and her sister she had been told that Adassa Ritchie had asked for help from the family but they had other things to pay for. However when they gave evidence both Jennifer Adekunle and Carole King denied that thy had been asked for financial assistance. On this point I prefer the evidence of Richard Ritchie and Vera Wright. I think that Adassa Ritchie probably did ask for help. However the request may have been informal and in the course of another conversation and both Jennifer Adekunle and Carole King may have forgotten about it.
20. It is common ground that Richard Ritchie agreed to be party to the mortgage and to the transfer. It is also plain that there must have been discussions between Adassa Ritchie and Richard Ritchie about this. Richard Ritchie describes these discussions in the 3 witness statements that he has made in these proceedings:

1. In his first statement he does not go into much detail as to the conversations at the time of purchase. He says in paragraph 6 that he was prepared to assist his mother to purchase the property even though he was planning to marry in June 1989; he makes the point on a number of occasions that none of the other members of the family would contribute.

2. Richard Ritchie's second statement does not take the matter any further

3. He does however add to it in his third statement. In paragraph 6 he says that his mother encouraged him to purchase the property with her, and told her that it would be his one day. He says that she told all of his brothers and sisters that it would be his. He repeats this in paragraph 13. He also says that she told him on a number of occasions that the house would belong to him.

21. When he gave evidence he repeated this evidence both in chief and in cross-examination. He said that his mother told him "It is better that you get the property. It will pass to you when I have passed on". Mr Hirst challenged this evidence as an exaggeration. He made the point that it was odd that it did not appear in the first or second witness statement and was in any event inconsistent with other evidence to which I shall refer below.

The Transfer

22. The transaction was completed on 17^th February 1989. The form of the Transfer would appear to follow the standard form of Bradford Council in transactions of this nature. It is not necessary to refer to it in detail save to note:

1. Both Adassa Ritchie and Richard Ritchie are named as the transferee.

2. It contains in Schedule A details of the price and discount as noted above.

3. It contains a number of covenants by the Transferee for which Adassa Ritchie and Richard Ritchie were jointly and severally liable.

4. It contains no express declaration as to the beneficial interests of either Adassa Ritchie or Richard Ritchie.

The Mortgage

23. It is common ground that on 17^th February 1989 Adassa Ritchie and Richard Ritchie executed a Charge in favour of Bradford Council. The Charge is not in evidence but there was produced 2 Mortgage payment books that give sufficient details for present purposes.
24. The Loan was a joint loan to Adassa Ritchie and Richard Ritchie of £6,004. It was repayable over 25 years. The initial interest rate was 9.45%. The initial monthly instalment under the mortgage was £49.71. However when building insurance and mortgage protection were taken into account the monthly payment rose to £61.70 per month. It is perhaps worth noting that the monthly payment under the mortgage was not very different from the rent payable under the tenancy.

Registration of Title

25. Application for registration at HM Land Registry was made on 27^th February 1989. It seems likely that this was an application for first registration as the Transfer gives no registered title number. In any event the application was successful and Adassa Ritchie and Richard Ritchie were duly registered as proprietors of the property under Title no WYK 436743. As one would expect the Office Copies contain details of the charge and the restrictions in favour of Bradford Council that occur in all transactions under the right to buy legislation.
26. Entry No 2 in the Proprietorship Register contains a restriction in the following terms:

No disposition by one proprietor of the land (being the survivor of joint proprietors and not being a trust corporation) under which capital money arises is to be registered except under an order of the registrar or the Court

27. The use of this restriction is described in the 1986 Edition of Ruoff and Roper on Registered Conveyancing on pages 437 to 438 under the heading "Form 62 Restriction". The authors make a number of points about this form of restriction:

1. The use of the restriction was prescribed in section 58(3) of the Land Registration Act 1925. Under that section the restriction was obligatory unless it could be shown to the registrar's satisfaction that the joint proprietors were entitled for their own benefit or could a valid receipt for capital money.

2. The wording that was used in this case was a standard form of wording approved by the Chief Land Registrar current in 1989.

3. The sole purpose of the legislation was to ensure that capital moneys were paid to at least two trustees

28. The authors deal with the relevant procedure in the following passage:

There is no need for joint transferees to apply for the entry of this restriction but they are required to supply the information which enables the Chief Land Registrar to enter it, or refrain from entering it. In this connection, all the forms of application for first registration contain a clause to the effect that the applicants are jointly and beneficially entitled and that by law the survivor will have power to give a valid receipt for capital money arising on a disposition of the land; the applicant's solicitor must either put his signature to this statement or delete it.

3.4. Marriage of Richard Ritchie

29. Richard Ritchie married Karlene Ritchie on 17^th June 1989. Initially Adassa Ritchie, Richard Ritchie and Karlene Ritchie all lived at the property. Both Richard Ritchie and Karlene Ritchie worked. Karlene Ritchie was employed by Bradford Council but there is no evidence as to the extent of her earnings.
30. There were differences between Adassa Ritchie and Karlene Ritchie that resulted in Richard Ritchie and his wife moving out. The precise date on which they moved out is unclear. Jennifer Adekunle thought it was December 1991. Richard Ritchie initially thought it might have been a year earlier but in the end he agreed his sister might be right. On balance I accept that it was December 1991.
31. According to Richard Ritchie when they moved out they entered into a shared ownership agreement over another property in Bradford with Brunel Housing Association and Halifax plc. This involved the payment of about £260 per month in rent/mortgage payments. According to Richard Ritchie they were to acquire a 10% stake in the property. No documents have been produced in relation to this arrangement and it has thus been impossible to verify it.
32. There was one child of the family – a daughter – Boston Aolassa Ritchie who was born on 22^nd July 2000.
33. Regrettably there were irreconcilable differences between Richard Ritchie and Karlene Ritchie. They separated. Initially Karlene Ritchie moved out with Boston. However later, in about January 2003, Richard Ritchie moved out and moved back to live with his mother at the property.
34. On 31^st October 2006 the parties were divorced. According to Richard Ritchie the divorce was amicable and there was no financial settlement following it. Subsequently Karlene Ritchie and Boston went to America. There was no equity in the other house in Bradford which was repossessed and sold.

3.5. Contributions to the Mortgage Payments

35. There is a good deal of conflicting evidence over the payment of the mortgage instalments. It is clear that the payments that were made prior to April 2003 were all made in cash. There is no documentary evidence to identify the source of any of the payments. Thus no bank statements have been produced either from Richard Ritchie or from Adassa Ritchie's administrators that shed any light on the source of the payments.
36. It is plain that from April 2003 till she died the mortgage has been paid by standing order from Adassa Ritchie's joint account
37. Richard Ritchie's evidence has become stronger as the case has progressed. In his first witness statement he stated that helped his mother with the mortgage, council tax and other household tasks. In his second statement he repeats this stating that even when he was not living with his mother he was helping her with money; When he gave evidence Richard Ritchie went much further. He suggested that when he was living at the property it was he who went down to the Council every month and he paid the £60 or so for the mortgage. At one stage he suggested that it was all his money. Later still he suggested that his mother had paid him some of the money. He also suggested that he paid £30 per week to his mother.
38. Richard Ritchie said that even after April 2003 he continued to make cash payments to his mother.
39. In their witness statements both Jennifer Adekunle and Carole King suggest that their mother frequently complained that Richard Ritchie made no financial contribution at all. Indeed Mr Hirst makes it clear in his skeleton argument that any contribution by Richard Ritchie will be challenged. When they gave evidence however neither Jennifer Adekunle nor Carole King went as far as their witness statements. They both said that their mother complained that Richard Ritchie did not make much financial contribution. It is, to my mind implicit in that complaint that he did make some contribution

3.6. Improvements

40. As already noted in about January 2003 Richard Ritchie returned to live at the property with his mother. At or about the same time Jennifer Adekunle and to a lesser extent Carole King started to take a more active interest in Adassa Ritchie's financial affairs. Such is the antagonism between the two sides in this dispute that each side accuses the other of an ulterior motive for their actions.
41. In any event in or about April 2003 Jennifer Adekunle arranged for her mother to open a joint account with her at Abbey National. It is not suggested that Jennifer Adekunle had any beneficial interest in the moneys in the account. She was a joint holder for administrative convenience. It is equally not suggested that there was anything improper about Jennifer Adekunle's conduct or that Adassa Ritchie did not approve of her actions.
42. In any event I have been provided with copies of the bank statements from this account between 22^nd April 2003 and August 2005. It is plain from the statements that Adassa Ritchie's pension and attendance allowance were paid into this account; the payments to Bradford Council under the mortgage and other utility bills were paid out of the account.
43. By this time Adassa Ritchie's health had deteriorated and there was active involvement from the Social Services Department in her care. Furthermore Jennifer Adekunle tried to improve her standard of living by carrying out improvements to the property. These included the installation of double glazing, central heating, a stair lift, a walk-in shower, and other equipment. Most of this was paid for by means of grants. However the double glazing was paid for by means of a finance agreement dated 23^rd September 2003. The cost was some £4,150 payable over 8 years at about £80 per month. As at the date of her death there was still some £4,132.54 due. In June 2007 the finance company issued proceedings claiming some £5,078. The proceedings have been abandoned but it is to be noted that the debt is a liability of the estate.
44. Richard Ritchie was not consulted about these improvements. Indeed it is the administrator's case that he was irresponsible in that he left the house in a mess. In any event he complains that he was not consulted. Matters came to a head when he found that Adassa Ritchie had ordered a new kitchen. This led to an argument between Jennifer Adekunle and Richard Ritchie which resulted in the police being called. As a result both Jennifer Adekunle and Richard Ritchie received a police caution.

3.7. Instructions for Adassa Ritchie's will.

45. In early 2005 Jennifer Adekunle made arrangements for Adassa Ritchie to be seen by Mr Conroy, a solicitor in relation to the making of a will. Mr Conroy attended the property on 24^th February 2005. He saw Adassa Ritchie alone in her bedroom for about 15 minutes. He made a contemporaneous note of the conversation. It is plain from the note that Adassa Ritchie told Mr Conroy that she wished to leave her estate equally to Jennifer Adekunle and Richard Ritchie. Mr Conroy's note indicates that he was told that Adassa Ritchie owned all of the house but that Richard Ritchie was a party to allow her to obtain a mortgage. Mr Conroy formed the view that the house represented virtually the whole estate.
46. Before drafting the will Mr Conroy decided to carry out some investigations. He accordingly discovered that the property was vested in joint names and that the amount then due to Bradford Council was £3,460.
47. Some 2 months after his meeting on 4^th May 2005 he wrote a letter to Adassa Ritchie at the property. He did not include a draft will. He did, however, set out his understanding of the position substantially in accordance with his file note. He made 2 suggestions as to the way forward – one of which was that Adassa Ritchie and Richard Ritchie execute a declaration of trust stating that they each owned a half share. It is no part of my task to comment on the adequacy or otherwise of the service provided by Mr Conroy. It might, however, be suggested that this was hardly an adequate response to the instructions given in February 2005 and that there were a number of ways that Adassa Ritchie's instructions could have been achieved.
48. In any event Adassa Ritchie was in hospital on 4^th May 2005. Richard Ritchie opened the letter when it arrived. He said that he immediately took it to his mother in hospital. His mother told that it was up to him what to do about the letter. She said that his name was on the deeds and that he could stay in the house. In paragraph 11 of his third witness statement he said that he visited his mother regularly in hospital in her final illness. During these visits she told him on a number of occasions that he could remain in the house and that it belonged to him.
49. In any event Richard Ritchie took the letter home and nothing was done about it.
50. Adassa Ritchie died on 8^th June 2005.

3.8. Events after the death

51. There are a number of disputed areas of fact and cross allegations arising out of the events following Adassa Ritchie's death. In my view none of these are determinative of any of the issues that I have to decide. Thus I shall not lengthen this judgment by setting them out.
52. It is common ground that Richard Ritchie has occupied the property since the death of his mother. He has paid all of the outgoings including the mortgage instalments. As at 1^st June 2007 the outstanding balance under the mortgage was £3,142.40 so that some £300 had been paid off the capital in the 2 year period since Adassa Ritchie's death.
53. There is no valuation of the property in evidence. However I was told by Mr Hirst that it was believed to be worth about £80,000.
54. Richard Ritchie has not worked since September 2006. According to his witness statement he is suffering from stress. There is a letter dated 3^rd October 2006 from his employer offering to re-employ him should he become medically fit to work. There is no medical evidence as to when this might be. It may be that when the dust settles after this litigation Richard Ritchie will be able to resume work.

4. Findings of Fact

55. There are two areas where it is necessary to make findings of fact

4.1. Promises by Adassa Ritchie that the property would belong to Richard Ritchie

56. Whilst I did not think that Richard Ritchie set out deliberately to mislead the Court I agree with Mr Hirst that he exaggerated his evidence and in those circumstances I have to treat his evidence with caution. I agree with Mr Hirst that I would have expected the evidence of the promises to have emerged earlier than his third witness statement. It is evidence that is inconsistent with what Adassa Ritchie told Mr Conroy in February 2005; it is also inconsistent with the Form 62 Restriction.
57. In those circumstances Richard Ritchie has not established on the balance of probabilities that the promises he alleges Adassa Ritchie made were in fact made.

4.2. Contributions to the mortgage payments.

58. It is very difficult to come to a conclusion on what contributions were made by Richard Ritchie. There are a number of reasons for this. First the amounts payable under the mortgage were, on any view, small. A sum of £60 per month is not a large sum and one within both Richard Ritchie and his mother's ability to pay. Second all the payments were made in cash and there is no documentary evidence from either side of payments prior to April 2003. Third the evidence of Richard Ritchie has emerged as the case progressed. As I have indicated I have not found Richard Ritchie a reliable witness. Fourth I am quite satisfied on the evidence that Richard Ritchie did make significant contributions to the mortgage and other outgoings, both while he was living there and when he was not. I think it likely that his contributions were more extensive when he was living there. As already noted Adassa Ritchie appears to have acknowledged that he was making some contribution even though she described it as "not much".
59. In the absence of better evidence I propose to find that the contributions of Adassa Ritchie and Richard Ritchie towards the mortgage and other outgoings of the property were approximately equal.

5. The parties beneficial interests

5.1. Express Declaration of Trust

60. As already noted the Transfer signed by the parties contained no express declaration of trust. In Stack v Dowden the House of Lords approved the decision of the Court of Appeal in Huntingford v Hobbs^[2] that a declaration in the transfer that the survivor "can give a valid receipt for capital money arising on the disposition of land" did not amount to an express declaration of trust. Similar reasoning would in my view apply to the Form 62 restriction in this case. In fact this case is stronger because the restriction was not in the Transfer signed by the parties.
61. In Stack v Dowden it was recognised that the restriction may be of some assistance in determining the intentions of the parties. However both Baroness Hale and Lord Neuberger made the point that it was of limited significance unless the parties had understood its significance^[3].
62. In the light of the passage in Ruoff & Roper referred to above it seems likely that that the solicitor jointly instructed by the parties struck out the relevant part of the form when he completed the application for registration. There is now no evidence of what advice he may or may not have given or what instructions he received. The highest the matter can be put is that he formed the view that the parties did not intend a beneficial joint tenancy.

5.2. The new approach advocated by Stack v Dowden

63. As is now well-known the majority judgments in Stack v Dowden advocated a new approach to domestic cases. This approach may be summarised:

1. The beneficial ownership of the property should follow the legal ownership.

2. If one party claims that the beneficial ownership is different from the legal ownership, then he or she must substantiate that claim by reference to what the parties intended. As Baroness Hale pointed out in paragraph 60 of her opinion:

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.

She went on to approve paragraph 4.27 of the Law Commission Discussion Paper Sharing Homes

If the question really is one of the parties' 'common intention', we believe that there is much to be said for adopting what has been called a 'holistic approach' to quantification, undertaking a survey of the whole course of dealing between the parties and taking account of all conduct which throws light on the question what shares were intended.^[4]

In so doing she in effect disapproved the slightly different formulation to be found in paragraph 69 of Chadwick LJ's judgment in Oxley v Hiscock^[5]

3. However, it will be only in "very unusual" circumstances that the beneficial interests in the property will be found to be different from the legal interests.

4. In determining the parties' intentions, the court may consider a wide range of factors. Thus at paragraph 69 Baroness Hale says:

69. In law, 'context is everything' and the domestic context is very different from the commercial world. Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties' true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties' relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties' individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.

64. Notwithstanding that formulation Baroness Hale went on to hold that Stack v Dowden was a very unusual case and justified a departure from the normal presumption. She sets out the unusual features in paragraphs 90 to 92 of her opinion. In summary Ms Dowden had contributed far more to the acquisition of the home than Mr Stack, there was no pooling of common resources, even notionally for the common good and they each undertook separate responsibility for each part of the expenditure that they had each agreed to pay. In paragraph 92 she concluded:

This is, therefore, a very unusual case. There cannot be many unmarried couples who have lived together for as long as this, who have had four children together, and whose affairs have been kept as rigidly separate as this couple's affairs were kept. This is all strongly indicative that they did not intend their shares, even in the property which was put into both their names, to be equal (still less that they intended a beneficial joint tenancy with the right of survivorship should one of them die before it was severed.) Before the Court of Appeal, Ms Dowden contended for a 65% share and in my view she has made good her case for that.

5.3. Application to this case.

65. Mr Hirst submitted that the new approach did not apply to this case. He submitted that it only applied in domestic situations where there was some sexual relationship between the parties. He drew my attention to various parts of Baroness Hale's opinion where she is discussing the nature of the problem^[6]. Whilst I see the force of the submission I cannot accept it. I agree that Baroness Hale primarily had in mind cohabiting couples living together in either a platonic or sexual relationship; however she does not limit her approach to those cases. This case relates to a domestic relationship between mother and son and in my view is to be decided in accordance with the new approach. It may well be, however, that where one is not dealing with the situation of a couple living together it will be easier to find that the facts are unusual in the sense that they are not to be taken to have intended a beneficial joint tenancy.
66. I turn then to consider the factors mentioned by Baroness Hale in paragraph 69 of her opinion. The context of the acquisition of the property is very different from that of the normal cohabiting couple. It was the purchase of a Council House by a tenant pursuant to a right to buy with the benefit of a generous discount in a situation where the tenant was not in a position to fund the mortgage without the assistance from her son who was also living at the property. This was the reason it was purchased in joint names. It is not known what advice was given by their joint solicitor at the time of purchase but there is an inference from the Form 62 restriction that he at least was of opinion that the parties did not intend that there should be a beneficial joint tenancy. The primary purpose of the acquisition was to provide a home for Adassa Ritchie. When, for example, Adassa Ritchie and Karlene Ritchie fell out in 1991 it was Richard Ritchie who moved out. The purchase was financed by the discount of £6,196 which was provided by Adassa Ritchie and the mortgage of £6,004 which (as I have found) each contributed equally. The parties' finances were separate. Adassa Ritchie had 9 other children. She was on good terms with them and on particularly good terms with her daughter Jennifer Adekunle. There is no reason to believe that she would have wanted the whole of her estate to pass to her youngest son, Richard Ritchie.
67. When I take these factors into account I have come to the conclusion that this, too, is a very unusual case. In my view the conclusions in paragraph 92 of Baroness Hale's judgment are just as apt to this situation as they were in Stack v Dowden. They are all strongly indicative that the parties did not intend their shares in the property to be equal (still less that they intended a beneficial joint tenancy with the right of survivorship should one of them die before it was severed.)
68. The fact that the property was conveyed into joint names, that Richard Ritchie was jointly and severally liable under the mortgage, that he was occupying the property at the time of the acquisition and that he contributed to the mortgage lead me to the conclusion that it was intended by the parties that Richard Ritchie should have a beneficial interest in the property. Whether this is an imputed or inferred intention does not matter. It is plain that Richard Ritchie's financial contribution was significantly less than that of his mother. The discount introduced by her was slightly more than 50% of the purchase price. On a strictly arithmetical (resulting trust) basis it would be difficult to justify a beneficial interest of more than 25%; however the new approach requires me to take the holistic approach advocated by the Law Commission in order to ascertain what shares were intended. Doing the best I can I have decided that the parties are to be taken to have intended that Richard Ritchie should have a one third beneficial interest in the property. In making this assessment I recognise the subjectivity and uncertainty of the task referred to in paragraph 146 of Lord Neuberger's dissenting opinion.

6. Estoppel

69. There are a number of reasons why the claim for proprietary estoppel fails. First (and most important) I am not satisfied that Adassa Ritchie made the alleged representations. Second (at least so far as there were representations said to have been made in 2005) there was no detrimental reliance by Richard Ritchie. Third I am not satisfied that it would be appropriate to grant Richard Ritchie any greater relief than the one third share in the property to which he is entitled.

7. Order for Sale

70. The application for an order for sale is made under section 14 of TOLATA^[7]. Under section 15 of TOLATA there are a number of matters that the Court is bound to have regard. As already noted the primary purpose for which the trust was made was for a home for Adassa Ritchie. That purpose ended when she died. Richard Ritchie is the owner of one third of the beneficial interest in the property, the estate is entitled to the other two thirds. I have to balance the wish of the administrators to sell the property for the benefit of the estate and the wish of Richard Ritchie to live at the property. If I allow Richard Ritchie to remain it means that none of the other beneficiaries will in effect receive any benefit from the estate. In those circumstances I am satisfied that it is appropriate to make an order for sale. However I also consider it should be postponed for 6 months. That should give Richard Ritchie sufficient time to get back to work before he has to look for alternative accommodation. If he gets another job he might be able to buy out he administrator's interest.
71. I have also considered whether it is appropriate for Richard Ritchie to make any payment for his continued occupation. In theory there is an argument that some payment ought to be made under section 13 of the Act. However provided Richard Ritchie continues to pay all the outgoings, including the mortgage, during the period of his occupation I do not think it appropriate to order him to make any further payment.

JOHN BEHRENS

Tuesday 21 August 2007

Note 1   [2007] 2 WLR 831    [Back]

Note 2   [1993] 1 FLR 736    [Back]

Note 3   See paragraphs 51 and 84 of the judgment of Baroness Hale, paragraph 130 of the judgment of Lord Neuberger    [Back]

Note 4   Law Com No 278, para. 4.27.    [Back]

Note 5   [2005] Fam 211    [Back]

Note 6   See for example paragraphs 41 – 46 of her opinion.    [Back]

Note 7   Trusts of Land and Appointment of Trustees Act 1996    [Back]