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Equitable Accounting

Date:17 APR 2008

Kim Beatson, Partner, Anthony Gold and Shelley Turrell, Trainee Solicitor, Anthony Gold.

Your TOLATA (Trusts of Land and Appointment of Trustees Act 1996) proceedings have almost reached conclusion. The judge has considered whether the applicant has acted to his detriment, made direct financial contributions, whether a constructive or resulting trust applies or, perhaps more unusually, whether there is any basis for a claim in proprietary estoppel. As a consequence the judge is able to make a declaratory provision regarding the beneficial interest in the disputed property and to consider whether there should be an order for sale. Finally, the judge will turn to the exercise of equitable accounting an account or inquiry as to what sums are due to the claimant from the defendant by way of rent or compensation for use and occupation of the premises.

The equitable accounting exercise enables the co-owner who has provided monies towards a property, over and above their interest in it, to reclaim sums that have been spent post-separation. It has to take place in most cases and will usually form part of the substantive claim in Civil Procedure Rules 1998 (SI 1998/3132), Part 7 or Part 8 forms, because in most cases one of the co-owners will continue to live in the jointly held property after the date of separation and, therefore, will be responsible for paying the mortgage instalments, rates and other outgoings.

More recent case-law is not specific to cohabitants. Accordingly, this article seeks to identify the common factors to be considered in the equitable accounting exercise and offers practical guidance as to how that exercise might be condensed and, if at all possible, avoided.

See November [2006] Fam Law for the full article.