In Marr v Collie  UKPC 17, a dispute arose between a separated same-sex couple about the beneficial ownership of property purchased during the relationship for investment purposes in their joint names. The Privy Council clarified that the principle in Stack v Dowden1, that beneficial ownership follows legal ownership unless the contrary is proven, is not limited to a domestic context and can apply where the parties’ personal relationship has a commercial aspect. However, the Court made clear that in addition context is key and is informed by the parties’ common intentions.
Even though the dispute in Marr v Collie related to the Bahamas, the Privy Council’s decision is likely to be followed in England, and other common law jurisdictions which apply similar rules. We consider this decision further below.
The appellant, Mr Marr, is a Canadian citizen working as a banker in the Bahamas. The respondent, Mr Collie, is a citizen of the Bahamas and works as a building contractor. Mr Marr and Mr Collie were in a personal relationship between September 1991 and July 2008. During their relationship, they acquired a number of properties (investment properties and a family home), and other items such as works of art, a boat, and a truck.
Mr Marr and Mr Collie purchased a number of properties for investment purposes between 2000 and 2008 in their joint names. Mr Marr paid the purchase price, legal and bank fees, and almost all mortgage payments in respect of all the properties. Mr Collie claimed that it was agreed between the parties that he would carry out redevelopment work in respect of some of the properties. The works were never carried out.
The case arose after the breakdown of the parties’ relationship in 2008 in respect of the beneficial ownership of the properties. Mr Marr based his claim on a resulting trust argument that he is entitled to full beneficial ownership of all the properties on the basis that he made virtually all the financial contribution associated with the purchase of the properties. Mr Collie denied this claim, saying that the properties were acquired in joint names and he should have a beneficial interest in the properties.
There were also various claims in respect of the boat, the truck and the various pieces of artwork however these are not the focus of this article.
Previous case law
To understand the reasoning of the Privy Council, it is helpful to summarise the key principles arising out of the case law in this area.
Stack v Dowden
The case concerned an unmarried heterosexual couple where the respondent was the main breadwinner. After the breakdown of the relationship a dispute arose in respect of the beneficial ownership of the family home which was in the joint names of the couple. The Court of Appeal ordered the net proceeds of sale of the family home to be divided 65% to 35% in the respondent’s favour. The appellant appealed to the House of Lords.
The appeal was dismissed. In their decision the House of Lords established the fundamental principles to determine the beneficial interests of formerly cohabiting couples who hold property in their joint names. Lady Hale, giving the lead judgment acknowledged that where domestic property was conveyed into the joint names of cohabitants, without any declaration of trust, prima facie both the legal and beneficial interests in the property were joint and equal. However, the prima facie position can be displaced if it is concluded that the parties had a common intention that their beneficial interests should be different from their legal interests. The onus of proving this lies with the party who asserts that the prima facie position should be displaced.
To discover what the parties’ common intention was, the Court should look at the parties’ whole course of conduct in relation to the property. The Court emphasised that many factors other than the parties’ respective financial contributions could be relevant when divining their true intentions. The Court also emphasised that cases in which the joint legal owners were to be taken to have intended that their beneficial interests should be different from their legal interests would be very unusual.
Laskar v Laskar2
In Laskar v Laskar the Court of Appeal considered the beneficial ownership of a property purchased by a mother and daughter as an investment. The Court’s view was that where members of the same family purchased in joint names primarily as an investment, the presumption of equality (as set out in Stack) did not apply.
Jones v Kernott3
In Jones v Kernott the House of Lords established that the common intention of the parties may be determined when the property was purchased or later by showing a common intention that the parties’ respective shares should change. The primary search was for what the parties had actually intended and their common intention was to be deduced objectively from their words or conduct.
At first instance, Isaacs J interpreted the decision in Laskar v Laskar to mean that the principle in Stack v Dowden (presumption of equality) applied only in a “domestic consumer context” and that the presumption could not apply where the primary purpose of the purchase was investment, even if the parties were in a personal relationship. He therefore concluded that since Mr Marr had bought the investment properties, there is a presumption that Mr Collie held these on resulting trust for Mr Marr, unless Mr Collie could “demonstrate that a gift was intended“. The judge found that Mr Collie failed to rebut the presumption of a resulting trust in favour of Mr Marr.
Court of Appeal of the Commonwealth of the Bahamas
Mr Collie appealed to the Court of Appeal and his appeal was allowed in part – Allen P held that Isaacs J had failed to examine the question of whether Mr Marr had intended to benefit Mr Collie at the time the various properties were bought and was wrong to decide that the onus was on Mr Collie to rebut the presumption of a resulting trust and to prove that a gift to him was intended.
Allen P relied on an email relating to one of the investment properties in which Mr Marr wrote that he and Mr Collie would have a 50% interest in the property to be purchased. The only other evidence of the parties’ intention, according to the Court of Appeal, was the conveyances themselves, which were systematically purchased in both the appellant’s and respondent’s name, providing “cogent evidence” that Mr Marr intended that Mr Collie should have an equal share in the investment properties. The Court of Appeal concluded that “the presumption of resulting trust in favour of [Mr Marr] is rebutted“.
Mr Marr appealed to the Privy Council on the basis that the Court of Appeal had applied the wrong test and erroneously held the burden of proving that the beneficial ownership of the investment properties differed from their legal ownership lay with Mr Marr. Mr Marr also argued that the Court of Appeal had erred in basing its critical determination on an item of evidence (the email) which had not featured in the trial before Isaacs J.
The Privy Council began by reviewing the leading cases of Stack v Dowden, Laskar v Laskar and Jones v Kernott.
In respect of Stack v Dowden, Lord Kerr, delivering the judgment of the Privy Council clarified that “to consign the reasoning in Stack to the purely domestic setting would be wrong” and concluded that it is clear from the reasoning of Lady Hale in Stack v Dowden that “she did not intend that the principle should be confined exclusively to the domestic setting” .
This meant that the starting point was that legal and beneficial interest was equal. However, This is only a starting point and “[t]he intention of the parties will still be a crucial factor“. (paragraph 40)
Applying the principles in Stack v Dowden to the case, the Privy Council said:
“Where additional evidence is available in the form of testimony from the parties themselves as to what their intentions were when the property was acquired … this can rebut the presumption of resulting trust. In that event there should be a direct focus on what the intentions of the parties were. That focus could only be avoided if the decision in Stack could properly be regarded as applying only to purely domestic arrangements. … the Board considers this cannot be so regarded and that the trial judge was wrong to dismiss it on that basis.”
The Privy Council then considered Laskar v Laskar which had been relied upon heavily by the judge at first instance. The Privy Council rejected the interpretation of Laskar as authority for the principle that the presumption in Stack v Dowden applies only in “a domestic consumer context“. Whilst the investment in Laskar had been a “purely financial one, designed to pay dividends to each of the participants but shorn of any aspiration for a future equal sharing of proceeds” it was also “entirely conceivable that partners in a relationship would buy, as an investment, property which is conveyed into their joint names with the intention that the beneficial ownership should be shared equally between them, even though they contributed in different shares to the purchase. Where there is evidence to support such a conclusion, it would be both illogical and wrong to impose the resulting trust solution on the subsequent distribution of the property.”
This means that beneficial ownership in a situation where a cohabiting couple purchase an investment property in joint names will not automatically be determined by the “resulting trust solution“.
The Privy Council also examined the decision in Jones v Kernott, which held that the common intention of the parties may be determined when the property was purchased or later by showing a common intention that the parties’ respective shares should change. The primary search was for what the parties had actually intended and their common intention was to be deduced objectively from their words or conduct. The Supreme Court in Jones v Kernott identified one of the exceptions to this rule to be where “the classic resulting trust presumption applies“.
A clash of presumptions?
The Privy Council identified a potential “clash of presumptions“. These are:
1) the presumption that joint legal ownership should signify joint beneficial ownership (the “starting point” in Stack); and
2) the presumption of a resulting trust where the parties have contributed unequally to the purchase of property in joint names.
Lord Kerr stated that a simplistic answer may be that if the property is purchased in joint names by parties in a domestic relationship the presumption of joint beneficial ownership applies, but if bought in a wholly non-domestic situation, it does not, in which case the resulting trust presumption would apply.
Lord Kerr considered that save where there is no evidence from which the parties’ intentions can be identified, the answer is not provided by the triumph of one presumption over another:
“Context counts for, is not everything, a lot. Context here is set by the parties’ common intention – or by the lack of it. If it is the unambiguous mutual wish of the parties, contributing in unequal shares to the purchase of property, that the joint beneficial ownership should reflect their joint legal ownership, then effect should be given to that wish. If, on the other hand, that is not their wish, or if they have not formed any intention as to beneficial ownership but had, for instance, accepted advice that the property be acquired in joint names, without considering or being aware of the possible consequences of that, the resulting trust solution may provide the answer.” (paragraph 54)
The Privy Council recognised that intentions can change over time, which is why Stack emphasised that examination of the parties’ course of conduct over the years in which they dealt with the property is crucial.
The Privy Council considered that intense scrutiny of why the properties acquired by Mr Marr and Mr Collie in 2008 were purchased in joint names is therefore warranted. Lord Kerr pointed out that by 2008 properties were being purchased by the couple in joint names years after Mr Marr alleged he expected Mr Collie to have contributed financially. If the financial contributions had not materialised, why did Mr Marr continue to agree to purchase the properties in joint names?
The Privy Council came to the view that the trial judge and the Court of Appeal had not adequately examined the central question of intention. The Privy Council therefore allowed the appeal and the case was remitted to the Supreme Court of the Bahamas.
Even though the case relates to the Bahamas, the Privy Council’s decision is likely to be followed in England and in other jurisdictions which have similar principles.
On the one hand, the judgment provides clarification about the approach that should be taken where cohabitees jointly own property purchased as an investment. Previously there was uncertainty as to whether property purchased as an investment by a couple in their joint names may fall outside the remit of the principle in Stack v Dowden (presumption of equal sharing), and would rather be decided on resulting trust principles. Marr v Collie clarifies that the equal sharing principle may apply to assets beyond the family home (e.g. to investment property) and joint ownership will be the starting point. However, this is only a starting point and when determining the beneficial interests in relation to investment property purchased in joint names by couples, the focus should be on examining the parties’ intention during the course of dealing.
However, the focus on actual intention means that cases of this nature will likely require very detailed factual investigation and may give rise to arbitrary outcomes simply due to a lack of evidence. It therefore highlights the importance for couples to seek legal advice when purchasing property in joint names, whether as an investment or as a family home, to record clearly their intentions as to the beneficial ownership of the property prior to making the purchase, and to update those intentions if they change over the course of the relationship.