This article was originally featured in the Gazette.
A recent case illustrates how getting your property affairs in order if your circumstances change is crucial. Rebecca Milton explains.
The Court of Appeal case of Wall v Munday  highlights the need for co-owners to ensure that their interests in jointly-owned property are dealt with sooner rather than later, or they risk facing what may seem like an unfair division of the asset.
Bryan Wall and Christine Munday married in 1969 and bought 7 Wellsmoor Gardens as joint tenants.
There are two ways in which you can jointly own a property: as joint tenants, or as tenants in common.
As joint tenants, each person owns the whole of the property with the other. If one co-owner dies, their interest in the property automatically passes to the surviving co-owner(s), whether or not they have a will.
As tenants in common, co-owners own specific shares of the property. Each owner can leave their share of the property to whoever they choose. When they die, their share in the property will pass in accordance with their will, or if they have no will, in accordance with the intestacy rules.
If a co-owner no longer wishes to hold the property as joint tenants, they can sever the joint tenancy. Severing the joint tenancy will mean that the property will be owned as tenants in common rather than a joint tenancy.
Bryan and Christine divorced in 1974 and Christine moved out of the property. While there were discussions in relation to the house, no settlement was reached, and no formal steps were taken to deal with its ownership. Christine never returned to the property, and Bryan very much treated it as if it was his own. He insured it, maintained and improved it, and let it out. By the time of his death in 2015, he had also repaid the mortgage on it.
As the property was owned as joint tenants on Bryan's death, Christine filed a death certificate with the Land Registry, so that the property would pass to her by survivorship in the usual way. Bryan's personal representative, Alan Wall, challenged Christine's claim to Bryan's interest in the property.
The primary claim was that an informal settlement had been reached between the parties at the time of their divorce, which included a sale of Christine's interest in 7 Wellsmoor Gardens to Bryan, and accordingly, Bryan was the 100 per cent beneficial owner of the property. In the alternative, it was claimed that there had been a severance of the beneficial joint tenancy by ‘mutual dealings’ and a variation of the parties' beneficial interests in the property in favour of Bryan.
The question therefore was whether Bryan's estate was entitled to a share of the property on the basis that either:
- there had been an agreement between Bryan and Christine
- the joint tenancy had been severed by mutual conduct
Decision at first instance
The judge in first instance concluded that there had been no agreement between Bryan and Christine in relation to the property as part of their divorce proceedings. However, he did find that the mutual conduct between the parties meant that the joint tenancy had been severed by the end of 1975.
The question, then, was what were the parties' respective shares in the property at that time? The judge was satisfied that their conduct did not evidence a common intention that they intended to vary their respective shares in the property from the default position of 50 per cent each. The judge said, at paragraphs 82 and 83 of his judgment:
‘82. …I must ask myself (before ever I can address the question as to the quantum of shares) whether there was a common intention to rearrange the beneficial interest in the property. In that enquiry in the absence of direct evidence (of which there is none) I am able to draw inferences from the conduct of the parties which would lead the reasonable observer to conclude that that was the common intention. The conduct must have been conduct observed or observable by the other party and I am to take no account of intentions of one not communicated to the other. In deciding upon the inferences that I draw on this question I take into account the following matters:
82.1. It was clear to both parties that [Bryan] was undertaking the burden of the mortgage outgoings on the property, its insurance and maintenance:
82.2. It was also clear to both parties (or as regards [Christine] readily ascertainable if she did not in fact no (sic)) that to enable [Bryan] to undertake this burden he was managing and letting out a property;
82.3. Despite [Bryan] undertaking these burdens and receiving the benefits, the legal liability under the mortgage remained throughout a joint liability:
82.4. In theory on a sale of the property the incidence of these burdens and benefits could be adjusted by an accounting exercise:
82.5. There was no mutual conduct or conduct of one party known to the other which pointed to an adjustment of the shares in which the beneficial interest was held.
83. I therefore conclude that I am unable to infer from the conduct of the parties that there was a common intention to rearrange their beneficial interests in the property.’
The judge held therefore that the parties were each entitled to half of the beneficial interest in the property.
Alan appealed the decision. He argued that Bryan should have an 86 per cent share in the property on the basis that the parties conduct following the divorce evidenced not only an intention to sever the joint tenancy, but also to vary their beneficial interests in the property. He did not seek to challenge the judge's decision that there was no agreement between the parties for Christine to sell her interest in the property to Bryan.
The appeal was dismissed. The appeal judge concluded that the judge at first instance had been entitled to say that he was unable to infer from the conduct of the parties that there was a common intention to vary their beneficial interests in the property. Further, he had taken into account what had happened in the whole of the relevant period. Accordingly, his decision that the parties were entitled to half each of the beneficial interest could not be impugned.
Address and document ownership when circumstances change
This case serves as a warning for what can happen when someone's affairs are not in order when they die. Bryan had in fact been solely responsible for the property for some 40 years, but even though Christine did not contribute to it at all during that time, she was still found to have retained a 50 per cent interest in the same.
This case further highlights the importance of ensuring that the ownership of a property is addressed by both owners as and when the need arises, and properly documented where possible. If the ownership of the property had been determined during the divorce proceedings, the position on Bryan's death might have been very different.
Full details of this case can be found at www.bailii.org.