Two Roads Still Diverged
In England and Wales, a decision of the Chancery Division, which seemed to suggest the adoption of something akin to the Canadian approach to the remedial constructive trust in joint tenancy disputes, has been reversed by the Court of Appeal (as reported in the STEP Trust Quarterly Review).
In Jones v Kernott [2010] EWCA Civ 578, a man (Kernott) and a woman (Jones) (not married) had purchased a house together in joint tenancy. The relationship ended, and the lower Court awarded Jones a ninety per cent interest in the residence: she made the down payment, and paid the vast majority of the payments due on the mortgage (after the relationship ended and the man left). Moreover, after separation, Kernott paid nothing towards the support of their children. Kernott appealed this decision on the grounds that, as a joint owner, and in the absence of any evidence (especially the absence of a cohabitation agreement) to the contrary, he was entitled to an equal fifty per cent share in the house.
The decision of the Court of Appeal (Kernott v. Jones [2009] WTLR 1771) essentially concludes that, in this type of case and in the absence of evidence of actual intention, the Court does not properly have jurisdiction to invoke an equitable remedy. Fairness can not be considered to alter the rights of a joint tenant to a fifty per cent interest in property unless there is some evidence of intention to the contrary. Put another way, it can not be presumed, in the complete absence of evidence of intention, that joint tenants have a shared intention that each should have a "fair and just share" other than fifty percent.
While the Canadian law has moved since the landmark case of Pettkus v. Becker to fashion equitable remedies for someone in the position of Jones, a cohabitation agreement (regardless of jurisdiction) would still seem the best way to avoid any question as to the intention of the parties. See this link for an interesting discussion by Donovan Waters of the different evolution of Canadian law (and which inspired this blog's title).
David M. Smith - Click here for more information on David Smith.
