Spotlight
Family Court Practice, The
Order the 2021 edition due out in May
Court of Protection Practice 2021
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
Family Law Awards adds a Wellbeing Award - enter now
This past year has been different for everyone, but family law professionals working on the front line of family justice have faced a more challenging, stressful and demanding time than most. To...
Perspectives on civil partnerships and marriages in England and Wales: aspects, attitudes and assessments
IntroductionThis article considers the developments since the turn of the century in the provision of new options for same sex and opposite sex couples to formalise their unions with full legal...
Family Law journal - take the survey and you could win £50 worth of vouchers
Do you subscribe to Family Law journal?Our aim is to provide all subscribers of Family Law with compelling, insightful and helpful content that you enjoy reading and find useful in your...
Commencement date of 6 April 2022 announced for the Divorce, Dissolution and Separation Act 2020
The Ministry of Justice has announced that the Divorce, Dissolution and Separation Act 2020 (DDSA 2020), which received Royal Assent on 25 June 2020, will now have a commencement date of 6 April 2022....
HMCTS blog highlights the use of video hearing due to COVID-19
HM Courts & Tribunals Service has published a blog detailing the impacts of coronavirus (COVID-19) on hearings. Pre-pandemic, HMCTS states that the use of video technology for live participation...
View all articles
Authors

PROPERTY: Qayyum v Hameed [2009] EWCA Civ 352

Sep 29, 2018, 16:12 PM
Slug : qayyum-v-hameed-2009-ewca-civ-352
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Apr 27, 2009, 07:23 AM
Article ID : 84857

(Court of Appeal; Pill, Moore-Bick and Etherton LJJ; 27 April 2009)

The property was in the joint names of the husband and wife. The property had been purchased for the wife to live in while the husband was working abroad, using a mortgage from the husband's employer plus joint funds from the sale of another property. When the employer went bust the husband signed a deed stating that the property belonged to the wife solely as her residence. Over 10 years later the claimant sued the husband for breach of contract, obtaining a freezing order against the husband. Subsequently, the husband and wife jointly obtained a mortgage, charging the property in order to obtain money for the husband's legal costs, and also for repairs to the property. The husband mistakenly believed that he could not fund his legal costs in any other way, because of the freezing order, and he communicated this mistaken understanding to the wife. The husband gave a personal covenant to support the mortgage. Later, the wife argued that she was the sole beneficial owner of the property, and that the husband had no interest in it; she repudiated the mortgage on the basis that it had been entered into on the basis of a misrepresentation by the husband, albeit an innocent one. The judge held the deed making the wife the sole beneficial owner had been valid, but that the act of charging the property had given rise to a constructive trust under which the husband and wife reverted to equal beneficial shares, notwithstanding the misrepresentation.

The judge had been entitled to conclude that there had been an agreement between the husband and wife that involved not only mortgaging the property, but also transferring to the husband half the beneficial interest in the property. The charging arrangement had involved substantial detriment to the husband, making him personally liable for the obligations and liabilities under the mortgage. Although the agreement had been made only because of the husband's innocent misrepresentation concerning the effect of the freezing order, the judge had been entitled, and correct, to find that a constructive trust arose in any event. The court would have refused rescission of the agreement, because it would not have been possible to restore the husband to the position he was in before execution of the mortgage. It would be an unusual case in which rescission for innocent misrepresentation would have been refused in respect of a concluded and binding agreement, but the same misrepresentation would be held to have prevented the creation of a common intention constructive trust.

Categories :
  • Archive
  • Judgments
Tags :
Authors
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from