Dr Jo Hawkins Law 2270 and 3270
Land Law 2018-2019
OWNERSHIP OF THE FAMILY HOME
Reading
Essential
Cowan, O’Mahoney, Cobb Great Debates in Land Law (Palgrave, 2016) Chapter11. Available
as an e-book through the library website
G Douglas, J Pearce, H Woodward ‘Cohabitants, Property and the Law: A Study of Injustice’
(2009) 72(1) The Modern Law Review 24
Gardner, ‘The ongoing evolution of family property constructive trusts’ (2016) 132 LQR 373.
Your assessed presentation question will be on this topic. As such the handout and reading
are designed to give you an overview of the area and relevant debates. You are expected to
conduct further research in order to fully develop your understanding for the presentation.
1
, 1. INTRODUCTION
1.1 Context of this topic
This topic is about disputes as to the ownership of the family home. The modern cases on this
matter have arisen mainly as between partners whose relationship has broken down.
Although the rules considered in this topic apply in principle to both married and unmarried
couples, on the divorce of a married couple the Matrimonial Causes Act 1973 applies, under
which the courts may reallocate the parties’ property rights in accordance with that Act. This
means that the land law rules are not paramount.
However, land law continues to play a central role in cases as between cohabiting couples.
Disputes of this kind have become common in practice. The reasons for this include:
i. A decline in the proportion of couples who are married, in favour of a larger proportion
of cohabiting partners.
ii. A significant rise in levels of home ownership during the 1900s.
iii. Greater financial independence for, and changes in attitudes towards, women, resulting
in both an increase in homes jointly owned at law and a greater likelihood of their
having contributed financially to the purchase of the home (both being established as
ways of showing a beneficial interest in it).
iv. The fact that the family home may well be the parties’ only significant asset.
It is impossible to separate the questions to be considered here from the law of trusts. For this
reason it is imperative to begin by making some general observations about the interaction
between co-ownership and the law of trusts, the ways in which land can be co-owned, and the
‘types’ of trust that can exist (express, resulting and constructive).
As will be seen, the starting point differs according to whether the legal estate (usually, the
legal fee simple) is held by one of the parties or by both or them. When a conveyance takes
place, the purchaser will tell their solicitor who the property is to be conveyed to (i.e one or
more persons). Those named in the conveyance will then become the registered
proprietor/proprietors (these are the names that will appear if you conduct a search on the Land
Registry database). We will begin with the increasingly common situation in which there is co-
ownership at law, before then moving on to consider single legal owner cases.
2
Land Law 2018-2019
OWNERSHIP OF THE FAMILY HOME
Reading
Essential
Cowan, O’Mahoney, Cobb Great Debates in Land Law (Palgrave, 2016) Chapter11. Available
as an e-book through the library website
G Douglas, J Pearce, H Woodward ‘Cohabitants, Property and the Law: A Study of Injustice’
(2009) 72(1) The Modern Law Review 24
Gardner, ‘The ongoing evolution of family property constructive trusts’ (2016) 132 LQR 373.
Your assessed presentation question will be on this topic. As such the handout and reading
are designed to give you an overview of the area and relevant debates. You are expected to
conduct further research in order to fully develop your understanding for the presentation.
1
, 1. INTRODUCTION
1.1 Context of this topic
This topic is about disputes as to the ownership of the family home. The modern cases on this
matter have arisen mainly as between partners whose relationship has broken down.
Although the rules considered in this topic apply in principle to both married and unmarried
couples, on the divorce of a married couple the Matrimonial Causes Act 1973 applies, under
which the courts may reallocate the parties’ property rights in accordance with that Act. This
means that the land law rules are not paramount.
However, land law continues to play a central role in cases as between cohabiting couples.
Disputes of this kind have become common in practice. The reasons for this include:
i. A decline in the proportion of couples who are married, in favour of a larger proportion
of cohabiting partners.
ii. A significant rise in levels of home ownership during the 1900s.
iii. Greater financial independence for, and changes in attitudes towards, women, resulting
in both an increase in homes jointly owned at law and a greater likelihood of their
having contributed financially to the purchase of the home (both being established as
ways of showing a beneficial interest in it).
iv. The fact that the family home may well be the parties’ only significant asset.
It is impossible to separate the questions to be considered here from the law of trusts. For this
reason it is imperative to begin by making some general observations about the interaction
between co-ownership and the law of trusts, the ways in which land can be co-owned, and the
‘types’ of trust that can exist (express, resulting and constructive).
As will be seen, the starting point differs according to whether the legal estate (usually, the
legal fee simple) is held by one of the parties or by both or them. When a conveyance takes
place, the purchaser will tell their solicitor who the property is to be conveyed to (i.e one or
more persons). Those named in the conveyance will then become the registered
proprietor/proprietors (these are the names that will appear if you conduct a search on the Land
Registry database). We will begin with the increasingly common situation in which there is co-
ownership at law, before then moving on to consider single legal owner cases.
2
