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17 JUL 2008

Mark Pawlowski: Resulting Trusts, Joint Borrowers and Beneficial Shares

Mark Pawlowski, Barrister, Professor of Property Law, University of Greenwich

To what extent may a party acquire beneficial ownership in a house simply by assuming liability on a joint mortgage affecting the property? This is one of the questions raised in Laskar v Laskar [2008] EWCA Civ 347, [2008] FLR (forthcoming) (see also case report at p 638 above), a Court of Appeal ruling involving a council property purchased in the joint names of a mother and daughter. In this case, the presumption of joint beneficial ownership was displaced in circumstances where the property was purchased not as a home but purely as an investment venture. Moreover, because the relationship was one between investors, the correct approach was to determine the parties' respective beneficial shares not by reference to constructive trust doctrine but by a strict application of resulting trust theory under which each party was entitled to the value of her own contribution. In relation to the mother's share in particular, the court was able to take into account the considerable right to buy discount, which she had obtained as a council tenant when purchasing the property from the local council.

For the full article, see July [2008] Family Law journal.

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