a) The parties that are relevant in this question are Alexandra and Bruno.

This paper seeks to determine the

percentage of interest over the land that Alexandra is entitled to. In order to do that, the discussion in this
essay will center around resulting trust and constructive trust in order to derive beneficial interest for
Alexandra.

Co-ownership by definition refers to the joint ownership of a property by two or more individuals or entities. It
may arise from various circumstances, such as inheritance, investments, or shared matrimonial arrangements1.
There are two different types of co-ownership, namely joint tenants and tenants in common. According to
sections 35 and 36 of the Law of Property Act 1925 (LPA), only joint tenants can exist in law. Therefore, it can
be concluded that Alexandra and Bruno are joint tenants in law because they are registered legal owners.
However, it may be a different scenario in equity. Since there are divided shares between Alexandra and Bruno,
of which Bruno owns 80% and Alexandra- 20%, it can be concluded that they are tenants in common in equity
because JT would require them to have equal shares over the land by virtue of the requirement of unity in
interest2. Thus, the main question here is one of “quantification” where there is a confirmed co-ownership, but
the relative percentage size of the co-owners will be argued. This essay will seek to determine the percentage
of beneficial interests that Alexandra owns over the land which should arguably be more than 20%.

The first step to establish equitable interest is to determine whether there was an express trust. The legal
owner may expressly declare that he holds the property on trust for the claimant, though it must be evinced in
writing as required by section 53(1) of the LPA 1925. This written declaration will be conclusive for the
beneficial ownership unless it was obtained by fraudulent means. In this case however, it does not seem like
there was an explicit declaration of Alexandra’s and Bruno’s respective beneficial interest. Hence, deriving
equitable interests from express trust would not be an option. Alexandra should then resort to implied trusts
to derive her beneficial interests.

There are two categories of implied trusts, namely, resulting trust and constructive trust. In resulting trust,
Alexandra may claim an equitable interest in the property if she has contributed to the purchase price of the
property. Her equitable interest would then be proportionate to her contribution to the purchase price. The
authority for this can be found in Dyer v Dyer3, where the courts held that there is a presumption that the
party who contributes money to the purchase price has an intention to retain the beneficial interest, even

1
D.G. Barnsley ‘Co-Owners' Rights to Occupy Trust Land’ (1998) 57 Cambridge Law Journal 123, 145
2
Martin Dixon, Modern Land Law (15th edn, OUP 2018) 130
3
[1775-1802] All ER Rep 205
despite the fact that the legal title to the property is held by another party. Bull v Bull4 is another case that
supports this. Hence, since Alexandra contributed to 50% of the purchase price, it can be argued that she
should be entitled to 50% of the share over the land.

However, the case of Jones v Kernott5, which affirmed Stack v Dowden6, established that resulting trusts do
not apply in instances of matrimonial homes. This was because resulting trust is a limited approach that
focuses on only one aspect of the party’s lives – the payment of money7. The court acknowledged the
complexity of family lives and so affirmed that a better approach that would lead to fairer result in matrimonial
land disputes was to use constructive trust. In this scenario, the complexity of the relationship between
Alexandra and Bruno lied in the fact that Bruno was not a good husband, and that they had to rely mostly on
Alexandra to work hard to earn money for the family, to do the household chores and take care of Bruno’s
needs. Even though Bruno contributed to half of the purchase price of the property which should have given
him half of the share of the property in resulting trust, this alone should not be the determining factor of his
share. His failure to act as a husband and to properly care for the property must also be considered, and
Alexandra should arguably have a larger share over the property because she has been the one maintaining
the house. Thus, the better way to determine Alexandra’s share of the property would be through constructive
trust.

Constructive trust arises where the situation is such that it would be unconscionable for the owner of the
property to deny the beneficial interest of others. Stack v Jones8 did establish that common intention
constructive trust was the more viable option in domestic cases. This was also similarly affirmed in Marr v
Collie9 - all of which concern the respective shares of persons who were already joint-legal owners of property,
similar to the current scenario. The issue here then revolves around the percentage of shares Alexandra can
claim from constructive trust. In order to establish CT, the claimant must show that there was a common
intention that they were supposed to enjoy some interest in the land. In the absence of an express agreement
as in this case, the threshold of inferring a common intention cannot be less than direct contributions to the
purchase price as established in Lloyds Bank v Rosset10. However, in Oxley v Hiscock11, the court widened the
scope in deciding intention by referring to the whole course of dealing between the parties in relation to the

4
[1955] 1 All ER 253
5
[2011] UKSC 53
6
[2007] UKHL 17
7
Martin Dixon, Modern Land Law (15th edn, OUP 2018) 142
8
[2007] UKHL 17
9
[2017] UKPC 17
10
[1990] 1 All ER 1111
11
[2004] 3 All ER 703
property to assess their interests under the trust12. This was later affirmed in Stack13, where the context was
given emphasis14. In this case, it can be argued that there was common intention between the parties because
of the purpose for which their property was bought. It was meant to be a matrimonial home, thus there is an
implied understanding that the ownership of the property should be shared between the husband and the
wife. Additionally, Alexandra has contributed to 50% of the purchase price - this should be a huge factor in
deciding her interest in the property as established in Rosset. Alexandra has also been the one contributing to
the upkeep of the house and thus, based on Stack15, she should obtain a share in the property that is at least
more than 50%.

The second element of common intention constructive trust is to show that there was detrimental reliance on
the intention by the claimant. This was first established in Rosset and later enhanced by the courts in Stack16
and Jones with an expanded scope17. Greasley v Cooke18 observed that evidence of detriment presumes
reliance. In this case, Alexandra has detrimentally relied upon the intention as she had to slave to earn a living
for the family, to do house chores and take care of all of Bruno’s needs. This is clearly to her detriment as she
was forced to undertake Bruno’s responsibilities of providing for the household as well, which is extraordinary
work - based on the intention. Eves v. Eves19 showed that extraordinary work is a form of detriment.
Furthermore, Rosset and Stack20 also established that contribution to the purchase price may qualify as a
detriment. Thus, in this scenario, there is no doubt that there was detrimental reliance by Alexandra on the
intention.

To conclude, Alexandra should be entitled to more than 50% of the share of the property under constructive
trust. This is because of her contribution to the purchase price of 50% and sheer hard work to maintain the
house in the face of Bruno’s failure to be a good husband.

b) The main issue here pertains to the dispute of sale over the property owned by Alexandra and Bruno. The
parties involved are these two owners and the mortgagee, Daily Mortgage who has an interest in the property.
The main provisions in this discussion are Sections 14 and 15 of the Trusts of Land and Appointment of
Trustees Act 1996 (TOLATA).

12
Yee Ching Leung, ‘Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott-
should the Resulting Trusts be preferred?’ [2019] 6(1) IALS Student Law Review
13
[2007] UKHL 17
14
Leung (n 12)
15
[2007] UKHL 17
16
[2007] UKHL 17
17
Martin Dixon, ‘Beneficial Interests after Stack v Dowden & Jones v Kernott’ [2011] CPL
18
[1980] 3 All ER 710
19
[1975] 3 All ER 768
20
[2007] UKHL 17
Section 14 of TOLATA states that any trustee of land or any person having an interest in land subject to such a
trust may apply to court for an order 'relating to the exercise by the trustees of any of their functions’. This
includes parties like a mortgagee, an equitable owner, or a legal owner. By virtue of this section, the court is
able to order a sale of Alexandra’s property on behalf of Daily Mortgage.

However, Section 15 of TOLATA enumerates a list of factors that the court must consider before ordering a
sale. Putnam & Sons. v Taylor21 observed that this is not an exhaustive list and the courts are free to consider
other relevant factors that play a part, though this was under the condition that the factors identified in this
section are considered. These factors are not given any particular default weighting as this was a matter for the
court to decide22. Hence, Alexandra may rely on these provisions to argue against the sale of her property by
Daily Mortgagee in court as well as her own unique circumstances. In particular, Section 15(c) of TOLATA and
Section 15(d) are significant factors in this case. Section 15(c) requires the court to take into account ‘the
welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as
his home’, which will be relevant in this scenario as Alexandra has a newborn baby who needs constant
medical attention. Aside from that, Section 15(d) will be significant to consider Daily Mortgage’s interest as a
secured creditor which needs to be given priority in this case. Oldham23 noted that following the introduction
of Section 15 of TOLATA to replace Section 30 of the LPA, the court now has greater discretion and versatility
to exercise its jurisdiction in cases on an application for the order of sale of land. Before this, it was unlikely for
the interests of children and families in occupation to prevail24. Thus, Alexandra might have a better winning
chance of resisting the sale due to this shift in law in the way courts will exercise their power to order a sale. It
is worthwhile to establish now that it is unlikely that the court will refuse the order of sale by virtue of Section
15(d) of TOLATA and its consideration for the interest of creditors, though it will be possible to argue for a
postponement of sale.

It is important to first recognise the challenges that may arise against the interests of Alexandra to stop the
order of sale. Historically, courts have followed the rule that a creditor should not be kept out of their money
unless there are clear reasons for refusing the sale25. This is so even in cases involving an innocent co-owner

21
[2009] EWHC 317 (Ch)
22
Mortgage Corporation v Shaire [2001] 4 All ER 364
23
Mika Oldham, ‘Balancing Commercial and Family Interests Under TLATA 1996, s. 15’ (2001) 60 Cambridge Law Journal
43, 45
24
Martin Dixon, ‘To sell or not to sell: that is the question. The irony of the Trusts of Land and Appointment of Trustees Act
1996’ (2011) 70 Cambridge Law Journal 579, 606
25
Martin Dixon, Modern Land Law (15th edn, OUP 2018) 155
whose signature might have been forged, leading to some unfairness. The first taste of the court’s inclination
here is seen in TSB v Marshall26. In this case, it was held that where there is a conflict between a chargee’s
interest in a matrimonial home and interests of an innocent spouse, the interest of the chargee would prevail.
This was then followed in Pritchard Englefield v Steinberg27 and subsequently affirmed in the case of Bank of
Ireland v Bell28. In this case, the court proceeded to order an order of sale even though Mrs Bell and her
children were all in ill health, and her signature to mortgage her house was found to be forged. The rationale
behind this decision was that it would be unfair to allow her substantial amount of debt to keep increasing
with no hope of recovery. Thus. it was held that refusing the sale would be plainly wrong. This is a similar
situation to Alexandra’s, where Bruno has also incurred a substantial amount of debt of 180,000 pounds, which
accounts for 90% of the price of the property. The court might reason that it would be unjust and plainly wrong
to keep Daily Mortgage out of their money, when payment is already overdue. Even though Alexandra has a
child in poor health, this was not a reason to outright refuse an order of sale, but to postpone it as pointed out
in Bell29. Thus, Alexandra has a very slim chance of stopping the order of sale for her property.

Despite that, there is light at the end of the tunnel because the courts do not automatically allow secured
creditors to prevail without first offering some conditions of recourse for the innocent co-owner. The court
may resist ordering a sale if there are children living in the property. This was the decision in Edwards v
Lloyds30 which effectively put into practice Section 15(c) of the TOLATA, requiring the court to have regard to,
inter alia, the welfare of any minor occupying the house. In this case, the court did consider the interests of the
claimant’s children and the time period by which they would all reach majority to postpone the sale for a basic
period of five years, though this was subject to certain provisions. Justice Park stated that he did not want to
order an immediate sale because the consequences would be ‘unacceptably severe’ upon the claimant and her
children31. Despite that, he also believed that an order must still be made to enable the bank to recover their
debt, though at a much later time rather than sooner. Thus, there was no order for an immediate sale of the
house but an order for the postponement of sale. Another similar case where the court took steps to care for
the welfare of a minor was Williams v Williams32. Thus, this shows the court’s willingness to protect a family’s
interest especially where a minor is involved. In Alexandra’s scenario, her newborn child is undoubtedly still a
minor, and a weak and sick one at that. It is crucial for Alexandra to remain with her child in the house for the

26
[1998] 2 FLR 769
27
[1998] 2 FLR 769
28
[2001] 2 All ER (Comm) 920
29
Ibid
30
[2004] All ER (D) 335 (Jul)
31
Ibid
32
(1980) 11 Fam Law 23
time being to attend to him because the child had some complications and required constant medical
attention. To use Justice Park’s lingo, the consequences of depriving Alexandra of her matrimonial home would
be ‘unacceptably severe’ because it might cause the life of her weak firstborn child. Furthermore, the facts also
state that Alexandra has nowhere else to go – which means ordering an immediate sale would leave her
stranded and homeless. It is essential for her to not lose her home at the moment so she can take care of her
child. Based on past precedents as established above, the court will likely order for a postponement of sale
instead of an immediate sale in order to protect the interests of Alexandra and her family.

Additionally, the case of Mortgage Corp Ltd v Shaire33 affirmed the courts’ interest in balancing a family’s
interests and the commercial interests of a secured creditor under Section 15 of TOLATA34. In this case, Mrs
Shaire’s signature was forged by her husband on two further charges on her house. She had not known of
these forged signatures. The court had to decide whether or not to order a sale at the request of the claimant
mortgagee. Justice Neuberger relied on the law’s new flexibility to broker a solution for both of the parties,
holding that the claimant’s interest should be converted to a loan for Mrs Shaire to pay off over time. This was
a situation that served the interests of both parties. In Alexandra’s case, she was also a victim because her
signature was forged by her husband. Thus, Alexandra can be assured that under S15 of TOLATA the courts
have more flexibility to craft a solution that serves Daily Mortgage’s and her interests by postponing the order
of sale.

To conclude, it is unlikely that the courts will refuse an order of sale over Alexandra’s property due to the fact
that they have to consider the interest of Daily Mortgage as the secured creditor. As the law generally states, ‘a
creditor should not be kept out of his money indefinitely’35. However, there is a high likelihood that the court
will order a postponement of sale considering the precarious situation Alexandra is in which happened through
no fault of her own. This is a testament to the court’s noble commitment to helping families who are in need.

33
[2001] 4 All ER 364
34
Oldham (n 23)
35
Putnam & Sons v Taylor [2009] EWHC 317 (Ch)
Bibliography
Primary sources

Legislation

Law of Property Act 1925

Trusts of Land and Appointment of Trustees Act 1996

Cases
Bank of Ireland v Bell [2001] 2 All ER (Comm) 920
Bull v Bull [1955] 1 All ER 253
Dyer v Dyer [1775-1802] All ER Rep 205
Edwards v Lloyds [2004] All ER (D) 335 (Jul)
Eves v. Eves [1975] 3 All ER 768
Greasley v Cooke [1980] 3 All ER 710
Jones v Kernott [2011] UKSC 53
Lloyds Bank v Rosset [1990] 1 All ER 1111
Marr v Collie [2017] UKPC 17
Mortgage Corp Ltd v Shaire [2001] 4 All ER 364
Oxley v Hiscock [2004] 3 All ER 703
Pritchard Englefield v Steinberg [1998] 2 FLR 769
Putnam & Sons v Taylor [2009] EWHC 317 (Ch)
Stack v Dowden [2007] UKHL 17
TSB v Marshall [1998] 2 FLR 769

Secondary sources

Journal Articles

Dixon M, ‘Beneficial Interests after Stack v Dowden & Jones v Kernott’ [2011] CPL

Leung Y C, ‘Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott-
should the Resulting Trusts be preferred?’ [2019] 6(1) IALS Student Law Review

Barnsley D.G, ‘Co-Owners' Rights to Occupy Trust Land’ (1998) 57 Cambridge Law Journal 123, 145

Oldham M, ‘Balancing Commercial and Family Interests Under TLATA 1996, s. 15’ (2001) 60 Cambridge Law
Journal 43, 45

Dixon M, ‘To sell or not to sell: that is the question. The irony of the Trusts of Land and Appointment of
Trustees Act 1996’ (2011) 70 Cambridge Law Journal 579, 606
Books
Dixon M, Modern Land Law (15th edn, OUP 2018)