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The things we do for love: detrimental reliance in the family home

Published online by Cambridge University Press:  02 January 2018

Anna Lawson
Anna Lawson*
Affiliation:
University of Leeds
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Extract

The rules governing the acquisition of beneficial interests in family homes have generated a great deal of academic literature since their restatement, and apparent clarification, by the House of Lords in Lloyds Bank plc v Rosset. In what has become an all too familiar passage, Lord Bridge outlined the two methods by which such an interest can be acquired in the absence of writing. For a claimant to succeed under the first of these (the only one with which this article will be concerned), the court must be satisfied that there has been: (a) an ‘agreement, arrangement or understanding’ between the claimant and the legal owner to share the beneficial interest, evidenced by oral discussions between them; and (b) that the claimant has acted to her detriment, or significantly altered her position, in reliance on the agreement. If these requirements are satisfied the claimant will obtain an interest, according to Lord Bridge, by way of constructive trust or proprietary estoppel.

Type
Research Article
Information
Legal Studies , Volume 16 , Issue 2 , July 1996 , pp. 218 - 231
Copyright
Copyright © Society of Legal Scholars 1996

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References

2. [1991] 1 AC 107.

3. Ibid at 132–133. Midland Bank plc v Cooke [1995] 4 All ER 562 and Drake v Whipp The Times 19 December 1995 suggest that these are the two methods of raising a constructive trust or proprietary estoppel, and that Lord Bridge did not intend his pronouncement to embrace the concept of the presumed resulting trust.

4. It should be noted that in the vast majority of these cases the claimant is female.

5. See eg C Harpum, (1982) 2 OJLS 277,282; D Hayton, (1990) 106 LQR 87, 97; M Halliwell, (1991) 20 A-ALR 500, 503–505; PJ Clarke, [1992] 22 Fam Law 72; S Gardner, (1993) 109 LQR 263, 264–269.

6. For recent judicial recognition of this, see Midland Bank plc v Cooke [1995] 4 All ER 562.575 per Waite LJ. See also Lloyds Bunk plc v Rosset [1991] 1 AC 107, 127–128. per Lord Bridge.

7. (1995) 69 P & CR 170.

8. There is a tendency to merge them, however. Eg in E Cooke, [1995] LQR 389, reliance subsumes detriment. This leads the author to suggest that the reasoning in Coombes v Smith [1986] 1 WLR 808, Walton v Walton transcript, 14 April 1994 and Meghraj Bank Lid v Hoshang Darasha Arsiwalla transcript, 10 February 1994 is inconsistent with that in Wayling v Jones (1995) 69 P & CR 170. On the analysis adopted here, no such inconsistency arises.

9. [1986] Ch 638.

10. Ibid at 648 and 649. See also ibid at 656, per Browne-Wilkinson V-C.

11. Ibid at 649.

12. Ibid at 652, per Mustill LJ.

13. See, in particular, D Hayton, [1990] 106 LQR 87; P Ferguson, (1993) 109 LQR 114; D Hayton, (1993) 109 LQR 485.

14. [1986] Ch 638.

15. See eg Lloyds Bunk plc v Rosset [1991] 1 AC 107, 131.

16. [1986] Ch 638,657.

17. Ibid.

18. See M Welstead, [1995] Conv 61.68; P Ferguson, (1993) 109 LQR 114, 124; C J Davis, [1995] Conv 409,410–411; T Lawson-Cruttenden & A Odutola, [1995] Fam Law 560, 561–562.

19. [1986] Ch 638.

20. Ibid at 657.

21. Cf Ungurian v Lesnoff [1990] Ch 206, where the dispute concerned Mrs Lesnoff's right to live in Mr Ungurian's house for the rest of her life.

22. It is, however, surprisingly difficult to find cases of this type where a proprietary estoppel was raised following a finding of detrimental reliance upon an agreement to share the beneficial interest. in Pascoe v Turner ([1979] 1 WLR 431) and Wayling v Jones ((1995) 69 P & CR 170), the claimants were awarded a beneficial interest on proprietary estoppel principles. Neither of these cases are archetypal, though. In the former, the promise was that the claimant should be allowed to live in the property for the rest of her life, not that she should own it. Furthermore, the promise was made on the breakdown of their relationship, not during it. In the latter, the dispute was not between the claimant and his former lover, but between him and his former lover's estate.

23. [1977] 1 WLR 438.

24. Supra note 12 and accompanying text.

25. Edward Nugee QC (in Re Bashem [1986] 1 WLR 1498, 1505) described the acts of a step-daughter as going ‘well beyond what was called for by natural love and affection for someone to whom she had no blood relationship’.

26. [1979] 1 WLR 431. This case was cited by Browne-Wilkinson V-C in Grant v Edwards [1986] Ch 638,657, along with Jones v Jones [1977] 1 WLR 438, as authority for his views on proprietary estoppel.

27. See Pascoe v Turner [1979] 1 WLR 431, 438, where Cumming Bruce W states that: ‘The main consideration pointing to a licence for her lifetime is that she did not … seek to establish that she had spent more money or done more work on the house than she would have done had she believed that she had only a licence to live there for her lifetime’. See also Ungurian v Lesnoff [1990] Ch 206, where detrimental reliance on an assurance that the claimant should be able to live in a particular property in London (or its equivalent) for the rest of her life seems to have been constituted, at least in part, by her giving up a flat and a promising academic career in Poland. The courts appear to be unwilling to find that such forms of conduct amount to a detriment in cases where a beneficial interest, rather than a life interest, was promised (see infra notes 48–5 1 and accompanying text).

28. See Durant v Heritage & Another transcript, 20 July 1994, p 10, where Andrew Park QC declared that the claimant's work on the property went ‘far beyond what one would expect a Rent Act protected tenant to do’.

29. See eg Re Bashem [1986] 1 WLR 1498, 1505 (discussed supra note 24) and Wayling v Jones (1995) 69 P & CR 170, 173. But cf Stokes v Anderson [1991] 1 FLR 391,399 where, obiter, Nourse W refers uncritically to Browne-Wilkinson V-C.'s view in Grant v Edwards [1986] Ch 638, 656–657 that, on this point, the principles of the common intention constructive trust might be ‘enlarged’ so as to bring them into line with those of proprietary estoppel.

30. If this is so, however, anomalies and arbitrariness may result. A situation could be envisaged where a claimant's behaviour would be considered detrimental if the assurance had been that they could live in the property for as long as they wished, but not if it had been that they should have a beneficial interest in it. If the assurance had been of the former type, a proprietary estoppel might thus have been established. Accordingly, the court would have a discretion to award such remedy as it thought fit and might, as in Pascoe v Turner [1979] 1 WLR 431, choose to award to the claimant the entire beneficial interest. If the assurance had been of the latter kind, however, no proprietary estoppel would have been established because the claimant would not have shown detrimental reliance. The court would therefore have no discretion to award any remedy to the claimant.

31. (1995) 69 P & CR 170.

32. Ibid at 174–175.

33. Ibid at 175.

34. [1980] 1 WLR 1306. 1311–1312.

35. Re Bashem [1986] 1 WLR 1498, 1505; Coombes v Smith [1986] 1 WLR 808, 819; Watts v Story unreported, 14 July 1983, but see Maudsley & Bum Land Law: Cases & Materials (London: Butterworths, 6th edn, 1992) p 576; Lloyds Bank plc v Rosset [1991] 1 AC 107, 132; Wayling v Jones (1995) 69 P & CR 170, 173.

36. Greasley v Cooke [1980] 1 WLR 1306. See also the authorities (other than Rosset) cited in the previous note. Cf P Ferguson, (1993) 109 LQR 114, 119–120, suggesting that in constructive trust cases the claimant may bear the burden of proving reliance as well as detriment.

37. (1995) 69 P & CR 170.

38. Transcript, 14 April 1994, p 22, per Hoffmann LJ. Cf E Cooke, [1995] LQR 389.

39. (1995) 69 P & CR 170, 171.

40. Ibid at 175.

41. Ibid at 173.

42. Amalgamated Property Co v Texas Bank [1982] QB 84, 104–105.

43. [1979] 1 WLR 431.

44. [1986] Ch 638. See also Risch v McFee [1991] 1 FLR 105.

45. Midland Bank plc v Dobson [1986] 1 FLR 171, 176.

46. Wayling v Jones (1995) 69 P & CR 170.

47. That the work of Vickie Mitchell was held to do so, however, appears to be one of the most obvious interpretations of Waite J's decision in Hammond v Mitchell [1991] 1 WLR 1127. For criticism, see L Clarke and R Edmunds, [1992] Fam Law 523,524; A Lawson, [1992] Conv 218, 222–223; P O'Hagan, (1993) 56 MLR 224, 225–226.

48. Eves v Eves [1975] 1 WLR 1338. For an interesting analysis of this decision see A Bottomley, (1993) 20 J Law and Society 56.

49. Cooke v Head [1972] 1 WLR 518.

50. According to Nourse LJ in Grant v Edwards [1986] Ch 638,648, ‘[I]n the absence of evidence, the law is not so cynical as to infer that a woman will only go to live with a man to whom she is not married if she understands that she is to have an interest in their home’.

51. Midland Bank plc v Dobson [1986] I FLR 171,177. See also Coombes v Smith [1986] 1 WLR 808, 820–821.

52. Midland Bank v Dobson [1986] 1 FLR 171, 176–177.

53. Lloyds Bank plc v Rosset [1991] 1 AC 107, 131.

54. Cooke v Head [1972] I WLR 518,519, per Lord Denning MR.

55. Lloyds Bank pfc v Rosset [1991] 1 AC 107, 131, per Lord Bridge. See also Eves v Eves [1975] I WLR 1338, 1342, per Lord Denning MR.

56. In Cooke v Head [1972] 1 WLR 518, Dennis Head alleged that Jacqueline Cooke had merely looked on and played with a blue cat, while the work was done by himself and some builders. Luckily for Jacqueline, Dennis' sister supported her version of events.

57. [1990] Ch 206.

58. Ibid at 223.

59. (1995) 69 P & CR 170.

60. Tinsley v Milligan [1993] 3 WLR 126 concerned a dispute between a formerly cohabiting lesbian couple about the beneficial ownership of what had been their home. Detrimental reliance was not in issue, however, the case being decided on traditional resulting trust principles.

61. For further discussion of the interplay between sexuality and detrimental reliance, see L Flynn and A Lawson, [1995] Feminist Legal Studies 105.

62. LEXIS, 9 July 1985.

63. Ibid. See also, Matharu v Matharu [1994] 2 FLR 597, 602.

64. Neither, presumably, could she expect what she had been promised on the death of the husband, If their relationship had ended before that time.

65. In Thomas v Fuller-Brown [1988] 1 FLR 237, it was not necessary to consider this point because the trial judge found that there had been no agreement. Indeed, the strength of the language used by the judge in that case suggests that men may find it difficult to prove such agreements. In her words (quoted ibid at 243, per Slade LJ): ‘Mrs Thomas was emotionally involved, but she is not so stupid in my view that she would ever have agreed, having worked all her life and finally got a house which was in her sole name, to have handed over any interest in her property’.

66. See eg Button v Burton [1968] 1 WLR 457, 461, per Lord Denning MR; Pettitt v Pettitt [1970] AC 777, 825–826, per Lord Diplock.

67. Button v Button [1968] 1 WLR 457,461, per Lord Denning MR (quoted in Pettitt v Pettitt [1970] AC 777,796, per Lord Reid and 807, per Lord Hodson).

68. Feminist literature has drawn attention to, and condemned, the way in which the law creates a divide between the private, which it ignores or devalues, and the public. The former is traditionally associated with women and the latter with men. See eg F Olsen, (1983) 96 Harv L Rev 1497; K O'Donovan Sexual Divisions in Law (London: Weidenfield & Nicholas, 1985).

69. Grant v Edwards [1986] Ch 638, 648.

70. For an interesting critique of another objective standard (the reasonable man test used in determining liability in negligence) and the anomalies it produces, see R Martin, [1994].

71. See also M Halliwell, (1991) 20 A-ALR 500,507. 23 A-ALR 334.

72. See eg Coombes v Smith [1986] 1 WLR 808.

73. (1995) 69 P & CR 170.

74. Ibid at 173.

75. It has been suggested that the courts have tended ‘… to take a much harsher approach to the requirements necessary to ground an equity of estoppel’ in cases where the litigants are not members of the same family than in those in which they are, (M Welstead, [1995] Conv 61, 65; see also E Cooke, [1995] LQR 389, 393). Whilst this might indeed be the case in relation to other requirements, it does not appear to be the case in relation to the establishment of detrimental reliance.

76. [1986] Ch 638,656.

77. See, for an interesting discussion of how the law in this area might be reformed and the kinds of relationship that should be affected, S Gardner (1993) 109 LQR 263, especially at 293.

78. 29th Annual Report.