The Right of Ownership of a Real Property, between Cohabiting Couples - Essay Example

? Introduction: The 1925 law of property act are laws that guide the transaction, acquisition and protection of property in the United Kingdom. In the English property law, there is the personal property and the real property. Personal property includes substances that can move, such as cars, money, clothes, and any immovable items such as jewelry. The real property law deals with immovable items and this includes houses and land (Brake, 2012). The laws that guide the operations of the real property are the 1925 law of property act. For instance, Section 1 of the law identifies legal estates and equitable interests, while section 37 of the law identifies the rights of a husband and wife in regard to acquisition of properties (Clarke and Kohler, 2005). This paper focuses on analyzing the right of ownership of a real property, between cohabiting couples. On this basis, it is important to distinguish between real property and personal property. The following are the differences that exists between real and personal properties (Ferguson, Buck and Wright, 2004) , Real estate properties can be owned in a limited capacity, while there is no way an individual can own a personal property in a limited capacity. Upon the death of the owner of real property, the next owner is the heir of the property. In regard to personal property, the statute of distribution guards the manner in which property passes on to another individual. In entering a contract that involves real property, it must be in writing. This is because these contracts are governed by section 29 of the Statute of Frauds. Contracts involving personal property do not need to be in writing. Parties to the contract will only write the contractual agreement if the case falls under section 17 of the Statute of Frauds. Some provisions of the Mortmain act govern the transfer of real property, for purposes of protecting immediate family members from disinheritance. However, the Mortmain act does not regulate any activities of personal property, only if Chattels are involved. It is not a requirement to register mortgages under real property; however, mortgages under personal property must be registered. Basing on this background, there is extensive argument in the United Kingdom on the relevance of various property laws in the country that protects cohabiting couples. For instance on January 23RD, Lord Justice Toulson allowed Pamela Curran to appeal a decision by a county court in 2010 of stripping her rights of sharing the properties she accumulated with Brian Collins. According to the judge, the property laws that regulate the sharing of properties by cohabiting couples in the United Kingdom were unfair to cohabiting couples (Ward, 2013). According to this case, Miss Curran had a relationship with Brian Collins from 1970s, to 2010 when the relationship came to an end. Miss Curran worked together with Brian in his business, and they lived together in his home. However, after the relationship ended, Mr. Collins threw her out of his house, leaving her penniless. However, Lord Judge Toulson denoted that the county court just applied the law (Ward, 2013). In 2007, the Law Commission in England made a recommendation for the government to change the cohabiting laws in England, so that couples cohabiting will have the same status as married couples. According to the commission, the government should create laws that provide for financial relief to cohabiting couples when they separate. According to the commission, these laws should reflect the contributions of the couples in the relationship (Halsbury, 2011). They further recommend that the couples, who should benefit from the laws, are those who have lived together for a minimum period of time, and have children together. According to their recommendations, couples might gain relief from these laws, if they have a written agreement on how they will share their properties once they separate (Toler, 2012). In 2008, the government of UK said it had no intention of implementing the recommendations of the report. This is until they studied the effectiveness of the laws, as being implemented in Scotland. In 2011, the government announced that they were planning some major reforms in the family system in UK. On this basis, they won’t change any property laws that guide cohabiting couples (Toler, 2012). In 2011, data from a research survey indicates that the number of married couples, in Wales and England fell by 200,000. This is in the last decade. However, the survey further indicates that the number of people who lived by cohabiting, increased by half, over the last decade. Facts of the Case: Roberta is a business woman, and she owns the house in which lives in. This property is in her name, and she is the one responsible for paying mortgage installments. Stan and Roberta start cohabiting, and she assures Stan that they are the joint owners of the house. On this basis, Stan contributes in paying the mortgage installments. Stan, out of his own savings, transforms part of Roberta’s house into a Jacuzzi, and Roberta pays for all the utility bills. Years later, Roberta buys another house, and she uses part of her savings to pay for the house. In this second house, the property is transferred to Stan and Roberta as joint tenants, but nothing is mentioned on the ownership of the property. When the house is rented out, Roberta collects the rental income. Some years later, the two separate, and Stan decides to live in the second house. The lease of the house has expired, and Stan therefore pays no rent. However, he pays all the utility bills relating to the house. Later on, Roberta proposes to Stan that he should take the second house, and leave the first house to her. Stan does not make a commitment in regard to this. Later on again, Roberta fall in love with Tyrone, and they move in together. This haunts Stan, who decides to confront Roberta that they should sale the first house, and share the proceeds together. Advice to Stan: In your case, you and Roberta were not married, and unmarried couples do not enjoy similar status and protection under the law as married couples. On this basis therefore, unmarried couples are not guaranteed of sharing each other’s property, when the relationship breaks down. This is because the courts do not have any power to alter the legal ownership of a property, owned by one of the couples who were cohabiting. However, the court has such powers when it involves couples who are experiencing a divorce. Section 37 of the 1925 property act provides for this provision (Hewitson, 2012). According to the legal rules of trust and estoppel, the courts may make an order basing on the amount of shares of the property under consideration. These rules apply to a party that does not have any legal interest in the property under consideration. This rule was advanced in the case of Oaxley vs. Hiscock (2004). According to this case, the Court of Appeal held that if two parties of a conflict made a contribution in purchasing a house, then they should share the house in accordance to their contribution (Probert, 2012). The court can also consider the intentions of the parties under dispute while making its consideration on the proportion of ownership an individual should get. If it is a house under consideration, it is possible to make a basis of a joint ownership. This is because a house is an example of a real property. Property act of 1925 establishes rules upon which an individual can transact on a house. A house satisfies the characteristics of a real property, as this paper outlines above. In the case of Stan and Roberta, Stan cannot claim the first house, because it is registered under the name of Roberta, and she paid for the mortgage with her own money. This is before they began cohabiting together. Even though Stan made a contribution in paying for the installment of the mortgage, the law does not recognize this fact. For instance in the case Pamela Curran vs. Brian Collins (2012), Pamela could not get anything from Brian even though she made a contribution to the wealth Brian had. This is because they were not married, and they therefore do not enjoy protection from the law. Stan is not married to Roberta, and he can therefore not claim the house under consideration. The promises made by Roberta to Stan in regard to joint ownership of the house were ambiguous. These promises could have been binding had they signed them down. Section 29 of the Statute of Frauds requires that parties entering into a contract involving real property must write the contract on a paper (Fine, 2013). For instance, Roberta told Stan that everything she owns belongs to him, and they should therefore enjoy life together. This statement is ambiguous, and it was made under emotions. It is therefore not an evidence of joint ownership of property. The minor contributions that Stan made in paying for the installments do not make him an owner of the house (Nichols, 2012). But this makes him to have some interests in the house, and therefore he is entitled to some compensation. The court’s decision of Oaxley vs. Hiscock (2004) supports this notion. Stan can therefore claim some parts of the proceeds from the house, though not a significant portion. In the second, Roberta used her savings to pay for the house. Despite this, the house is registered under joint tenancy. Under this agreement, if the couples separate, they will share the house on a fifty-fifty basis with each other. In the 2007 case of Stack vs. Dowden, the court of appeal gave a ruling that if a property is registered under the joint names of the cohabitants, then the presumption is that the property is held under equal shares (Gadish, 2012). However, a party can prove that he or she deserves a more than equal share basing on his or her contribution of the house. In this case, the financial affairs of Stan and Roberta are different. For instance, Roberta uses her money to pay for the house, while Stan uses his money to renovate the house. On this basis therefore, Roberta is entitled to a higher share of the house, in comparison to that of Stan. This decision gains acceptance in the case of Stack vs. Dowden. In this case, the judges further denoted that the defendant managed to prove that she made a larger contribution, to the house under consideration, and she was entitled to a larger share of the house. The courts gave her defendant the 65% share that she claimed. In Jones vs. Kernott, the Supreme Court gave a method of calculating properties that are under joint tenancy, by cohabiting couples (Hartmann, 2012). In this case, the court was of the opinion that financial contributions are relevant in ascertaining the share of the property, but other factors must also be put into consideration. It is important to identify what was their intention, at the time of purchasing the house, and on this basis, the court shall then allocate a fair share of ownership to the parties concerned. In this case, the intention was not to create a joint tenancy, because the rents are paid to Roberta account. They have not even talked about the ownership of the house, and therefore, Roberta controls a larger percentage of the second house. This is because Roberta paid for the property with her own money, and Stan contribution was minimal, because he only did some repair works. Roberta can also break the joint tenacy that she has with Stan, in regard to the house. Section (36) part 2 of the 1925 property act allows this to happen. However, this does not allow Stan to release his interest of the property to Roberta. Conclusion: In this case, the law favors Roberta in relation to the two houses. For instance, in the first house, Roberta paid for the mortgage deposit, before living with Stan. She continued paying for the installments, with minimal contributions from Stan. These contributions do not necessarily make Stan a joint owner of the property with Roberta. In the second house, there is a joint tenancy, and because of this, Stan is entitled to some percentage ownership of the house. However, his share of the house will be calculated on the basis of his contributions. Bibliography: Brake, E. (2012). Minimizing marriage: marriage, morality, and the law. Oxford: Oxford University Press. Clarke, A., & Kohler, P. (2005). Property law commentary and materials. Cambridge, UK: Cambridge University Press. Ferguson, M. W., Buck, A. R., & Wright, N. E. (2004). Women, property, and the letters of the law in early modern England. Toronto: University of Toronto Press. Fine, M. A. (2013). Handbook of family theories: a content-based approach. New York: Routledge. Gadish, O. (2012). Don't say I do!: why women should stay single. Far Hills, NJ: New Horizon Press. Halsbury, H. S. (2011). Halsbury's laws of England (4. and 5. ed.). London [u.a.: LexisNexis. Hartmann, T. (2012). Planning by law and property rights reconsidered. Surrey, UK, England: Ashgate. Hewitson, R. (2012). Property law statutes 2012-2013. London: Routledge. Nichols, J. A. (2012). Marriage and divorce in a multicultural context: multi-tiered marriage and the boundaries of civil law and religion. New York: Cambridge University Press. Probert, R. (2012). The changing legal regulation of cohabitation: from fornicators to family, 1600-2010. Cambridge [UK: Cambridge University Press. Toler, L. (2012). Making marriage work: new rules for an old institution. Chicago: Bolden. Ward, V. (n.d.). Property laws for cohabiting couples 'unfair', judge says.. The Telegraph. Retrieved April 22, 2013, from http://www.telegraph.co.uk/news/uknews/law- and- order/9822039/Property-laws-for-coha Top of Form Bottom of Form Top of Form Bottom of Form Read More