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21 DEC 2005

PROPERTY: Crossley v Crossley [2005] EWCA Civ 1581

(Court of Appeal; May LJ and Sir Peter Gibson; 21 December 2005) [2006] BPIR 404, [2006] FLR (forthcoming)

The property was purchased by the husband, wife and son together under the right to buy legislation, the husband and wife being the local authority tenants. On the husband's death a dispute arose as to the extent of the son's beneficial interest in the property. In the absence of a declaration of beneficial interests, the judge held that there had been a common intention between the three purchasers that the son was to have a beneficial interest of at least one-third, and that on the husband's death the husband's share was to pass to the survivors in proportions equivalent to the existing interests. According to this decision, the son and the wife each owned 50% of the property. The wife appealed, arguing that the judge should have applied principles of resulting trust, and looked at what would have been a fair share having regard to the whole course of dealing over the years.

The judge had first to consider whether there had been an agreement, arrangement or understanding as to the beneficial interests in the property, and if so, whether a specific beneficial interest had been agreed, arranged or understood. If a specific beneficial interest was identified, the court would give effect to the consensus unless there was a good reason for not doing so.

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