Geary v Rankine (2012)

Facts

Mrs G and Mr R had been in a relationship since 1990

In 1996, Mr R purchased a guest house with his own savings the parties had NOT intended to live in
the property or run it themselves but run by a manager

Then Mr R ran it himself and Mrs G became involve in the business (cleaning, cooking, and looking
after guests)

Mr. R did not pay Geary wages, and she asked for money when she needed it

The relationship deteriorated, Mrs G claimed for interest in guest house based on a business partnership
or a CT
HELD

Trial Judge rejected Mrs G

Court of Appeal dismissed Mrs Gs appeal:

the legal title was solely in Mr Rs name and the burden of establish CT is on Mrs G
Whether there was a common intention for Mrs G to have a beneficial interest in the property,
determining from the parties conduct (Jones v Kernott)?
There was a common intention to run the business together but =/= a conclusion the property
would belong to both!
impermissible leap to go from a common intention that the parties would run a business
together to a conclusion that it was their common intention that the property in which the
business was run, and which was bought entirely with money provided by one of them,
would belong to both of them
Ely v Robson [2016] Court of Appeal subject to contract
Fact

E and R co-habited in a property with Es title

When relationship broke down, E began possession proceedings and R counterclaimed that she had
beneficial interest in the property under CICT

The couple met and orally agreed a relatively complex settlement under the terms which E would hold
the property for himself for life with the remainder interest belonging 80% to his children and 20% to
R.

There were terms governing the payment of outgoings, the right to occupy the property and the
compromise of Es claims to other properties owned by R

E did not pursue the proceedings any further given Rs acceptance of the settlement

R claimed that the settlement was not binding on her since it was not incorporated in a signed, written
agreement satisfying the Statute. E argued that R was bound by the agreement either a CICT or PE
HELD

Assumed R had beneficial interest under CICT prior to the settlement agreement

No CICT where (Herbert v Doyle):

1. a formal written agreement is anticipated; or
2. further terms remain to be agreed so that the interest in property to be acquired is not clearly
identified; or
3. the parties did not expect their agreement to be immediately binding

In these situations, if the agreement is incomplete, the parties cannot rely on CICT or PE (Arden LJ)

Court rejected Rs contention that these requirements were not satisfied:

1. although a formal written agreement was contemplated, nothing was said or written that
preclude the possibility that a binding compromise had been agreed in the meeting between the
parties; and
2. there were no terms still to be agreed; and
3. the terms were sufficiently clear to constitute a binding agreement

E relied on the agreement to his detriment by: not pursuing the possession proceedings; abandoning his
claims to Rs other properties; and allowing R to remain in possession.

Ambulatory Constructive Trust (Lord Hoffmann in Stack; adopted in Kernott)

parties shares in the property can vary over time in accordance with difference circumstances and
intentions of the parties at the relevant time

compelling evidence required to support an inference that there was a fresh agreement as to
beneficial ownership before the court can give effect to the common understanding

interaction between an ambulatory CT and 3rd parties may also prove to be a highly complex one,
especially when there is a charge over one partys share
Chen Lily v Yip Tsun Wah Alvan [2016] HKEC 2326, Court of Appeal
Fact

Couple acquired a flat which they intended to cohabit prior to marriage acquired in joint names

Broke up and the Defendant move out

Dispute to respective beneficial entitlement

Plaintiff accepted the original intention was beneficial JT; however, there was subsequent variation of
the original common intention so that she would have a larger share of the beneficial ownership

Plaintiff argued that the original JT was agreed to by her on the basis that the Defendant would be
solely responsible for the costs of acquiring the flat (both up-front cost and the mortgage payments)

She contended that the common intention was varied when it became clear that she would have to
contribute to the acquisition costs because the Defendant could not meet them entirely out of his
own resources
HELD

Court of Appeal: Yuen JA

Presumption of equality
Such a variation could be inferred from conduct for Plaintiff to prove this variation but she was
unable to prove
No evidence of any changed common intention this was a domestic joint venture and attempts
to draw up a balance sheet based on contributions made were ill-conceived

Domestic joint venture context no longer applied after separation and an order requiring the Defendant
to bear half the mortgage costs after separation reflected the parties intention in the changed
circumstances
in any event, P was entitled to recover these on the basis that they were payments that were made
in order to preserve the property for the parties joint benefit
Erlam v Rahman [2016] EWHC 111
Fact

E had the benefit of a charging order over a house in Rs sole name

Rs wife (W) claimed that she had the benefit of a priority interest by a Deed of Trust

The Deed of Trust did not purport to create a trust but to record the fact that W had contributed 75% of
the purchase price and so had a 75% beneficial interest
HELD

Chief Master Marsh pointed out that the property had been acquired as a buy-to-let investment
The right approach is following Laskar v Laskar, to apply the resulting trust rather than Stack v
Dowden jointly-owned family property
W had not shown that she had made any qualifying contributions and so she had no beneficial
entitlement

Clear difference in approach between family homes (domestic consumer context) and commercial
context (even when the business partners were also family members)

Fung Oi Ha v Fung Pui On [2016] HKEC 1272, CFI

Fact

Title to a family home was in the fathers name

In 2005, the father assigned the home into the names of himself and his son as JT

In 2011, the father and son assigned the home into the sons sole name

The son gave no consideration for either of these assignments

One of the daughters brought proceedings seeking a declaration that she had a beneficial interest under
CICT

There was no express agreement that she was to have an interest

The daughter relied on the fact that since taking up employment, she had over many years given a large
proportion of her salary to her mother and this money had been used to discharge the out-comings and
expenses of the property + she also looked after the father since his first stroke in 2003
HELD

Recorder Lisa K Y Wong SC considered whether the common intention could be inferred
Rosset Lord Bridge: only contributions to purchase price or mortgage installments will do VS Fox
LJ Burns v Burns: any payments referable to the acquisition of the house will do, including
contributions to household expenses that allow the other party to meet the mortgage payments)

Judge took a broader view: holistic approach of the whole course of dealings applying the factors
identified by Baroness Hale in the para 69 of Stack v Dowden should be undertaken
But it did not help the daughter
Context is relevant: this is not a claim by a spouse to a share in the matrimonial home
The relationship is between parents and children in what appears to be a conventional
Chinese family practicing traditional family values I daresay, in a lot of these cases,
the parents (and probably the children too) would be taken aback if they be told that,
even in the absence of an express agreement or understanding, the childrens
contributions could be used to support the inference of an intention to share the
beneficial interest of the parents property (which may be the parents only shelter in old
age) if such contributions should happen to be applied toward the mortgage payments of
the property
McGuiness v Preece [2016]
Fact

Sons claim to land owned by his parents

The parents had established a family business in which their 4 children worked

The parents transferred the business into a company set up for that purpose the parents were the
majority shareholder until they were bought out by the children when the father desired to retire

The parents retained in their own name the title to the land on which the business was carried on

The father died and ownership of the land passed to his wife. She then died leaving the land to her
daughter

One of the sons claimed to have an interest in the land, relying on PE and / or CICT

Claim failed
HELD

Accepted the son had a genuine belief that he had or was to have an interest in land BUT nothing said
or done by the father was a clear enough (Thorner v Major) assurance

No assurance and agreement to establish a Constructive Trust

Wong Yuk Tung v Wong Po Ling [2016] HKEC 2143
Fact

Husband and wife were legal JT

Husband business ran into difficulties and he and his wife transferred title to the wife and 2 of their
daughters as TC in equal shares

Husband alleged that the arrangement was to put his home out of reach of his creditors and the
daughters held on trust for him

Daughters disputed this

HELD

Recorder Lisa K Y Wong SC held that since the question was whether there was express agreement
between the father and his daughters, this was a CICT rather than resulting trust case

She referred to Re Superyield Holdings Ltd and Liu Wai Keung v Liu Wai Man and found that there was
evidence of an express agreement that accorded with the fathers case
Adverse Possession
Tsang Foo Keung and Anr v And Others [2016] HKCA 514
Fact

P claimed that the Ds had trespassed on its land and sought possession of the land from 1st Defendant

Plaintiff had a hawker stall between 1963/64 and 1985 and under a fixed pitch hawker licence granted
by Government
HELD

Where two interpretation can be pointed from evidence, in this case the intention to possess is not
established (Powell)
if he has not made it plain to the world at large by his actions or words that he has intended to
exclude the owner as best he can, the court will treat him as not having the requisite intention

The hawker stall was under licence from government

They only come to use the land because of the hawker licence granted by government

The hawker in any event will be defeated by the adverse possession by Government through the
licensee (hawker) (Sze To Chun Keung)
U Po Chu v Tsang Pui Ling and Others [2016] HKCFI 2084
Fact

2 floors Stone House when 1st D first moved in in 1972

Many occupants throughout the years and between 1979-1985, they combined their respective share of
rent and sent to the landlords representative (landlord refused to collect rent)

In late 1985, occupiers other than 2nd D came together and agreed that all would stop paying rent to the
landlord and would occupy the Stone House and the Land jointly and they would jointly exclude the
whole world from entering the Land, and if one of the occupiers left, his or her portion of occupation
would be occupied by other surviving members of this coalition of occupiers.

By 1993, 1st D had possession of the ground floor and waived 2nd Ds fee (became 1st Ds licensee) and
had control to the stairs. 1st D also paid solely for the utility bills.
HELD

Factual exclusive possession can be held jointly but not severally by several persons at the same time.
To adversely possess a property through joint possession by several squatters, it must be shown that
all squatters have unity of possession jointly over the whole property, rather than merely having
possession over a particular part of the property severally and independently from the other
squatters

Between 1985-1993, the possession of rooms was several and independent. There was no occupier in
effective control of the Stone House and none of them was in factual exclusive possession. The
occupiers were in several possession but not single joint possession.

Each room has its own electricity meter. It indicates that parties never had intention to jointly possess
the whole of the Stone House together.