Property in which more than one of person has an interest may be held by one person in his or her sole name or in joint names. There could be a number of reasons why a jointly owned property is held in just one name; these include an earlier acquisition of the property and a purchase of council property. If property is held jointly, it can be held as joint tenants or as tenants in common.
Property held in one name
Where property is held in one name it is vital if future disputes are to be avoided that the other person’s interest is clearly set out. This can be done by a trust deed, which will lie behind the legal title. It will explain the position and specify the interest in the property owned by the person holding the legal title. It will also deal with arrangements for how one of the parties might buy out the other should this need arise.
Because the trust deed will lie behind the legal title, notice of it must be given to any person considering purchase of the legal title. This will be done by registering a restriction against it title to the property with the Land Registry. Form C1or C2 is used for this purpose.
Persons holding property as joint tenants are deemed to have equal and indivisible shares in the property. The result of this is that if one dies, that share of the deceased in the property will pass automatically to the survivor under what is known as the right of survivorship. It will not pass according to the will of the deceased or the law of intestacy. It is most usual for husband-and-wives who are buying property together to hold the property in this way.
Tenants in common
Tenants in common will have divisible shares in the property which may or may not be equal. On the death of one of the tenants in common, his or her share will not pass automatically to the survivor but will pass according to the terms of the deceased’s will or the law of intestacy. This way of holding property jointly is most usual when the shares held are not equal or where the relationship between the parties is a business arrangement and not as husband and wife.
This is what is known as an equitable doctrine to soften possible injustice where one person has contributed significantly to a property but the legal title is held by another. The contribution can be by way of money or by carrying out work to improve the value of the property. It can also apply where property is held jointly, but one party has made a larger financial contribution than the other which for the sake of fairness should result in a larger than 50% interest in the property.
To establish a constructive trust it will be necessary to show an agreement or common intention, express or implied that the property was to be held jointly.
The person claiming a beneficial interest must have done something to their detriment as a result of the agreement or common intention of as a result of the promise made by the legal title holder.
The doctrine of proprietary estoppel allows a person who claims that there has been a mistake as to their legal rights to property. They claim that as a result of this mistake they acted to their detriment and in reliance on the mistaken belief. They must also show that the legal title holder must have known the truth about the claimant’s legal right and mistaken belief and that they encouraged the claimant to act to their detriment. Where a council property is bought under the right-to-buy scheme, the person with the right to buy will be treated as having contributed towards the purchase price to the same amount as the discount given when buying the property.