Home Information Cases Kyriacos Costas Hapeshi v Athena Allnatt (2010)

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Kyriacos Costas Hapeshi v Athena Allnatt (2010)

Summary

Applying an holistic approach to the evidence before the court, it was apparent that the claimant held a 25 per cent interest in a property with the estate of his deceased mother holding a 50 per cent interest and the estate of his deceased brother holding a 25 per cent interest.

Facts

The claimant (H) claimed a declaration that he was the beneficial owner of a property. H's mother (M) had exercised her right to right buy the property as a local authority tenant with a discount of slightly over 50 per cent of the value of the property being applied to the purchase price. The house was purchased by means of a mortgage and the property was registered in the name of M and of H's brother (B), as proprietors, at the Land Registry. The transfer form stated that M and B held the property as joint tenants. B predeceased M who died some years later. M's will appointed H and the first defendant (D), who was H's sister, as executors and stated that eight-ninths of her property was to be left to her eight surviving children with the remaining ninth to be divided amongst B's children. Probate was granted to D and double probate was later granted to H. H contended that he held the entire beneficial interest in the property pursuant to a constructive trust that had been created through the intention of M, B and himself before the property was purchased, that they would hold the property as joint tenants or in equity pursuant to proprietary estoppel.

Held

On the evidence before the court it was apparent that before the property was purchased, it was intended that H would participate in the purchase, but that intention could not be effected as the local authority would not accept H's name on the legal title of the property. Whilst there was some witness evidence in favour of H's contention, looking at the evidence as whole, it was apparent that H had exaggerated such intentions as there might have been at the time the property was purchased. It was clear that there was no express agreement between M, H or B as to how the property was to be held by them or in what shares, and there was no satisfactory explanation as to why they had not entered into a trust deed either before the property was purchased or afterwards. The fact that the transfer form stated that M and B held the property as joint tenants was of little relevance as it was apparent that H could not read English and there was no evidence that at the time of the transfer he understood what a joint tenancy was. The evidence before the court did not suggest that H had made a full initial contribution towards the purchase price or that he had made contributions to the purchase price thereafter. Whilst it was apparent that H had taken out an endowment policy in the full sum of the purchase price before the mortgage was drawn down, as B had also done, and that policy had been taken out with the mortgage in mind, H's endowment policy had not been charged to the mortgage. Further, certain sums that H had withdrawn from his bank account before the mortgage was drawn down had not been used to facilitate the purchase of the property. There was not a lot of documentary evidence to suggest that H had been making contributions towards the mortgage. However, it was apparent that H had made some payments to clear mortgage arrears and had made other payments towards insurance for the property and household items for the property. What was noteworthy was that for a considerable period, the mortgage payments had been made through the use of benefits payments that M was in receipt of and sums received from lodgers at the property and that the property purchase had been made possible through the use of M's discount that was greater than the purchase price. Accordingly, bearing all the evidence in mind and adopting an holistic approach to the parties' whole course of conduct in relation to the property, it was apparent that H held a 25 per cent interest in the property with M's estate holding a 50 per cent interest and B's estate holding a 25 per cent interest, Stack v Dowden (2007) UKHL 17, (2007) 2 AC 432 applied and Abbott v Abbott (2007) UKPC 53, (2008) 1 FLR 1451 considered.

Judgment accordingly

Chancery Division
Judge Hodge QC
Judgment date
21 January 2010
References

​LTL 21/1/2010

Practice areas