Professional Documents
Culture Documents
Facts
In 1996, Mr R purchased a guest house with his own savings the parties had NOT intended to live in
the property or run it themselves but run by a manager
Then Mr R ran it himself and Mrs G became involve in the business (cleaning, cooking, and looking
after guests)
Mr. R did not pay Geary wages, and she asked for money when she needed it
The relationship deteriorated, Mrs G claimed for interest in guest house based on a business partnership
or a CT
HELD
When relationship broke down, E began possession proceedings and R counterclaimed that she had
beneficial interest in the property under CICT
The couple met and orally agreed a relatively complex settlement under the terms which E would hold
the property for himself for life with the remainder interest belonging 80% to his children and 20% to
R.
There were terms governing the payment of outgoings, the right to occupy the property and the
compromise of Es claims to other properties owned by R
E did not pursue the proceedings any further given Rs acceptance of the settlement
R claimed that the settlement was not binding on her since it was not incorporated in a signed, written
agreement satisfying the Statute. E argued that R was bound by the agreement either a CICT or PE
HELD
Assumed R had beneficial interest under CICT prior to the settlement agreement
In these situations, if the agreement is incomplete, the parties cannot rely on CICT or PE (Arden LJ)
E relied on the agreement to his detriment by: not pursuing the possession proceedings; abandoning his
claims to Rs other properties; and allowing R to remain in possession.
parties shares in the property can vary over time in accordance with difference circumstances and
intentions of the parties at the relevant time
compelling evidence required to support an inference that there was a fresh agreement as to
beneficial ownership before the court can give effect to the common understanding
interaction between an ambulatory CT and 3rd parties may also prove to be a highly complex one,
especially when there is a charge over one partys share
Chen Lily v Yip Tsun Wah Alvan [2016] HKEC 2326, Court of Appeal
Fact
Couple acquired a flat which they intended to cohabit prior to marriage acquired in joint names
Plaintiff accepted the original intention was beneficial JT; however, there was subsequent variation of
the original common intention so that she would have a larger share of the beneficial ownership
Plaintiff argued that the original JT was agreed to by her on the basis that the Defendant would be
solely responsible for the costs of acquiring the flat (both up-front cost and the mortgage payments)
She contended that the common intention was varied when it became clear that she would have to
contribute to the acquisition costs because the Defendant could not meet them entirely out of his
own resources
HELD
Domestic joint venture context no longer applied after separation and an order requiring the Defendant
to bear half the mortgage costs after separation reflected the parties intention in the changed
circumstances
in any event, P was entitled to recover these on the basis that they were payments that were made
in order to preserve the property for the parties joint benefit
Erlam v Rahman [2016] EWHC 111
Fact
Rs wife (W) claimed that she had the benefit of a priority interest by a Deed of Trust
The Deed of Trust did not purport to create a trust but to record the fact that W had contributed 75% of
the purchase price and so had a 75% beneficial interest
HELD
Chief Master Marsh pointed out that the property had been acquired as a buy-to-let investment
The right approach is following Laskar v Laskar, to apply the resulting trust rather than Stack v
Dowden jointly-owned family property
W had not shown that she had made any qualifying contributions and so she had no beneficial
entitlement
Clear difference in approach between family homes (domestic consumer context) and commercial
context (even when the business partners were also family members)
In 2005, the father assigned the home into the names of himself and his son as JT
In 2011, the father and son assigned the home into the sons sole name
One of the daughters brought proceedings seeking a declaration that she had a beneficial interest under
CICT
The daughter relied on the fact that since taking up employment, she had over many years given a large
proportion of her salary to her mother and this money had been used to discharge the out-comings and
expenses of the property + she also looked after the father since his first stroke in 2003
HELD
Recorder Lisa K Y Wong SC considered whether the common intention could be inferred
Rosset Lord Bridge: only contributions to purchase price or mortgage installments will do VS Fox
LJ Burns v Burns: any payments referable to the acquisition of the house will do, including
contributions to household expenses that allow the other party to meet the mortgage payments)
Judge took a broader view: holistic approach of the whole course of dealings applying the factors
identified by Baroness Hale in the para 69 of Stack v Dowden should be undertaken
But it did not help the daughter
Context is relevant: this is not a claim by a spouse to a share in the matrimonial home
The relationship is between parents and children in what appears to be a conventional
Chinese family practicing traditional family values I daresay, in a lot of these cases,
the parents (and probably the children too) would be taken aback if they be told that,
even in the absence of an express agreement or understanding, the childrens
contributions could be used to support the inference of an intention to share the
beneficial interest of the parents property (which may be the parents only shelter in old
age) if such contributions should happen to be applied toward the mortgage payments of
the property
McGuiness v Preece [2016]
Fact
The parents had established a family business in which their 4 children worked
The parents transferred the business into a company set up for that purpose the parents were the
majority shareholder until they were bought out by the children when the father desired to retire
The parents retained in their own name the title to the land on which the business was carried on
The father died and ownership of the land passed to his wife. She then died leaving the land to her
daughter
One of the sons claimed to have an interest in the land, relying on PE and / or CICT
Claim failed
HELD
Accepted the son had a genuine belief that he had or was to have an interest in land BUT nothing said
or done by the father was a clear enough (Thorner v Major) assurance
Husband business ran into difficulties and he and his wife transferred title to the wife and 2 of their
daughters as TC in equal shares
Husband alleged that the arrangement was to put his home out of reach of his creditors and the
daughters held on trust for him
Recorder Lisa K Y Wong SC held that since the question was whether there was express agreement
between the father and his daughters, this was a CICT rather than resulting trust case
She referred to Re Superyield Holdings Ltd and Liu Wai Keung v Liu Wai Man and found that there was
evidence of an express agreement that accorded with the fathers case
Adverse Possession
Tsang Foo Keung and Anr v And Others [2016] HKCA 514
Fact
P claimed that the Ds had trespassed on its land and sought possession of the land from 1st Defendant
Plaintiff had a hawker stall between 1963/64 and 1985 and under a fixed pitch hawker licence granted
by Government
HELD
Where two interpretation can be pointed from evidence, in this case the intention to possess is not
established (Powell)
if he has not made it plain to the world at large by his actions or words that he has intended to
exclude the owner as best he can, the court will treat him as not having the requisite intention
The hawker in any event will be defeated by the adverse possession by Government through the
licensee (hawker) (Sze To Chun Keung)
U Po Chu v Tsang Pui Ling and Others [2016] HKCFI 2084
Fact
Many occupants throughout the years and between 1979-1985, they combined their respective share of
rent and sent to the landlords representative (landlord refused to collect rent)
In late 1985, occupiers other than 2nd D came together and agreed that all would stop paying rent to the
landlord and would occupy the Stone House and the Land jointly and they would jointly exclude the
whole world from entering the Land, and if one of the occupiers left, his or her portion of occupation
would be occupied by other surviving members of this coalition of occupiers.
By 1993, 1st D had possession of the ground floor and waived 2nd Ds fee (became 1st Ds licensee) and
had control to the stairs. 1st D also paid solely for the utility bills.
HELD
Factual exclusive possession can be held jointly but not severally by several persons at the same time.
To adversely possess a property through joint possession by several squatters, it must be shown that
all squatters have unity of possession jointly over the whole property, rather than merely having
possession over a particular part of the property severally and independently from the other
squatters
Between 1985-1993, the possession of rooms was several and independent. There was no occupier in
effective control of the Stone House and none of them was in factual exclusive possession. The
occupiers were in several possession but not single joint possession.
Each room has its own electricity meter. It indicates that parties never had intention to jointly possess
the whole of the Stone House together.