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some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a
238:, with Mr Rosset’s family trust money. The trustees had insisted on his sole ownership as a condition for taking the trust money. He had funded the cost of the renovations to the house. She had made no financial contributions to the acquisition or renovations, but had done decorating and helped by assisting in the professional building works in the immediate two months before their full-time moving in (including at night). Mrs Rosset was in possession of the home on 7 November 1982, but contracts were not exchanged until 23 November. Mr Rosset took out a loan from
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court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation 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.
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Whether or not Lord Bridge's observation was justified in 1990, in my opinion the law has moved on, and your
Lordships should move it a little more in the same direction, while bearing in mind that the Law Commission may soon come forward with proposals which, if enacted by Parliament, may recast the
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If Mrs. Rosset had become entitled to a beneficial interest in the property prior to completion it might have been necessary to examine a variant of the question regarding priorities which your
Lordships have just considered in Abbey National Building Society v. Cann and, subject to that question, to
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held that it had been a common intention, on the facts, that she would share in the property. She had done acts to her detriment, and she was in actual occupation at the relevant date through the builders, agreeing with the court below. The term ‘actual occupation’ does not require physical presence,
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gave the only legal opinion, holding that because there had never been any express agreement that she would have a share, nor any contributions to the purchase price, Mrs Rosset could establish no right in the home. The other judges said they had pre-read this judgment and they approved it. He said:
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section 70 was the date the charge was created, i.e. 17 December just as
Scarlett J had interpreted the law at trial; however, it abjectly refused to be drawn into whether Rosset was "in actual occupation" (clarifying this would need to be before completion). In this court's view, finding unlike the
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Ch 638. In both these cases, where the parties who had cohabited were unmarried, the female partner had been clearly led by the male partner to believe, when they set up home together, that the property would belong to them jointly. In Eves the male partner had told the female partner that the only
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In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, and where the
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The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at
221:
In the lower court it dealt with a follow-on aspect of finding — instead — a valid contribution: the question of whether, in a repossession scenario the pre-purchase home improver who is not the borrower nor the legal owner (in this case it was the spouse/partner of the borrower) is in
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and secured it with a mortgage on the home. The charge was executed on 14 December, without Mrs Rosset’s knowledge, and completion took place on 17 December. The charge was registered on 7 February 1983. Then Mr Rosset defaulted on the loan. Lloyd's Bank sought possession of the home in the late
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The case stood for the proposition that a no-owning cohabitee contributing to the cost of running a house and, even, quite common renovations to a derelict property did not, in itself, create a beneficial interest in that person's favour. All of the reasoning of the judgment was delivered
222:"actual occupation". If so that would override and outrank the lender's interests in the property. That court's panel found (2-1) that Rosset's renovation works during the school day, including on the date of making of the mortgage/secured overdraft, did amount to actual occupation.
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the female partner was told by the male partner that the only reason for not acquiring the property in joint names was because she was involved in divorce proceedings and that, if the property were acquired jointly, this might operate to her prejudice in those proceedings.
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The bank contended she had no property rights in the home, amongst other things, because the work she had done was not enough to give her an equitable proprietary right. Secondly, as found in the lower courts, she was not "in actual occupation" at the relevant date.
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reason why the property was to be acquired in his name alone was because she was under 21 and that, but for her age, he would have had the house put into their joint names. He admitted in evidence that this was simply an "excuse." Similarly in
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Constructive trust in equity; actual occupation as overriding interest under the land registration acts; no direct financial contribution; sole legal ownership; no co-ownership promises or agreement; contribution by renovation
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decide whether, as a matter of fact, she was in "actual occupation" of the property on 17 December 1982. Since these questions have now become academic, I do not think any useful purpose would be served by going into them.
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agreed. He clarified in his view the meaning of actual occupation should reflect equitable rules, and so undiscoverable people’s interests would not bind. Further in his view, Mrs Rosset's occupation was "discoverable".
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as it was a case involving two legal owners and not a single legal owner and a person claiming a beneficial interest. In that regard Lord Walker's criticism was forceful obiter dicta and did not repeal
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case. It specifically deals with the translation into money of physical contributions from a cohabitee or spouse (as regards each other), under which its principles have been largely superseded.
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courts below, no equitable interest of Rosset, it would be unnecessary to look at her actual occupation as she, in reality, had no strict economic right to be there so as to outrank the lender.
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and daily visits of Mrs Rosset to the semi-derelict house was enough. He also suggested builders for Mrs Rosset were also occupying on her behalf.
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dissented, finding
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260:
245:
229:
220:
213:
206:
184:
183:
182:
82:Case history
51:
15:
1302:New Zealand
1123:English law
1040:Ch 350, 377
580:FLR 313, CA
510:s 70(1)(g))
389:concurred.
383:Lord Oliver
379:Lord Ackner
347:Eves v Eves
319:Lord Bridge
277:Nicholls LJ
240:Lloyds Bank
210:Lord Bridge
157:Lord Ackner
149:Concurrence
144:Lord Bridge
141:Decision by
122:Lord Ackner
1374:Categories
1317:Common law
1162:Labour law
817:EWCA Civ 6
764:1 WLR 1073
751:EWCA Civ 1
605:EWCA Civ 6
553:EWCA Civ 8
291:Mustill LJ
284:Purchas LJ
198:trusts law
1287:Hong Kong
1272:Australia
1138:Welsh law
1133:Scots law
699:easements
415:However,
75:2 WLR 867
66:Citations
1336:See also
508:LRA 1925
501:LRA 2002
493:s 70(1))
491:LRA 1925
484:LRA 2002
442:See also
312:LRA 1925
266:Judgment
171:Keywords
73:1 AC 107
1297:Ireland
1148:Company
989:UKHL 12
961:UKSC 45
933:UKPC 36
887:UKSC 53
873:UKHL 17
859:UKHL 14
831:UKPC 46
685:UKSC 52
646:NPC 162
633:UKHL 14
70:UKHL 14
58:Decided
1322:Equity
1277:Canada
1215:Trusts
976:Ch 105
929:UKPC 2
915:UKHL 2
901:UKHL 1
672:Ch 276
659:UKHL 6
619:UKHL 3
567:UKHL 4
539:UKHL 1
426:Rosset
421:Rosset
307:obiter
232:Thanet
192:is an
1292:India
1247:Scots
1238:Scots
1229:Scots
1220:Scots
1206:Scots
1197:Scots
1028:Notes
504:Sch 3
487:Sch 1
417:Stack
331:or a
226:Facts
188:
177:works
38:Court
1249:and
1240:and
1231:and
1222:and
1208:and
1199:and
1190:and
1150:and
997:see
697:and
693:see
385:and
236:Kent
200:and
100:none
1376::
931:,
428:.
381:,
377:,
335:.
234:,
196:,
1091:e
1084:t
1077:v
731:e
724:t
717:v
506:(
489:(
469:e
462:t
455:v
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