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Is a properly completed TR1 definitive in a cohabitation dispute?

Date:31 OCT 2016
‘Couldn’t help but make me feel ashamed to live in a land where justice is a game.’ (Bob Dylan, Hurricane)

While Bob was singing about deeper matters than who owned a share of another’s house at the end of an unmarried relationship, the above line sometimes has resonance to me when trying to explain to a former cohabitant how they may (or may not) have a claim over their former cohabitee’s property, when that property is jointly owned. It also arises when advising a client whether there is a way to absolutely bind a cohabitee so that no future claim can be made in respect of a property owned by one party in an unmarried relationship.

The three seminal cases of Stack v Dowden, Jones v Kernott and Oxley v Hiscock involving considerable judicial input at the highest levels were supposed to clarify the uncertainty that arose at the end of such relationships in terms of the beneficial ownership of property. However, as we can see from Andrew Commin’s article on inference and imputation, the result has been a rather unsatisfactory series of reported cases with inconsistent rules and approaches. The more you dig into the case law the less clear it becomes.

At the time of writing in the middle of September, the Cohabitation Bill slumbers in the House of Lords with no imminent prospect of arrival. It is well worth reading however, as it does deal with opt out agreements, of which more below. Hopefully, practitioners are now looking at its guidance in drafting their cohabitation agreements and referring to them in the event (possibly unlikely) that the legislation ever comes into force. In the meantime, the lack of clarity remains and provides fertile ground for the lawyers, at the expense of the clients. This article will look briefly at – and (will not) clarify –
  1. The current law as it stands as to the ownership of property held in joint names at the end of an unmarried relationship, looking in particular at what we tend to call the ‘joint tenants’ box in the Land Registry Form TR1.
  2. Consider whether it is possible to remove any risk of a subsequent claim against that property as a result of imputed or inferred discussions/actions within the relationship, or whether even where at the outset there is a clear express trust the terms of that can be altered by the actions of the owners, intended or otherwise.
No absolute right answer is found and your views are invited from both Andrew and me as to where you think we are wrong or right.

The full version of this article appears in the October 2016 issue of Family Law. 

Online subscribers can access the article here

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