In Dervis v Deniz [2025] EWHC 902 (Ch) a Claimant sought to include a new argument in an appeal in a claim regarding the co-ownership of property she held with her former partner.
The argument was that her partner had in fact expressly released his interest in a series of emails sent after they had split up and he had left the house, so that there was no need to find a constructive or resulting trust as she had originally claimed and failed to establish due to the existence of an express declaration of trust in the original transfer of the property to them which was binding on the parties in the absence of fraud or mistake.
The emails in question took the form of a relatively typical back and forth between two people in the process of splitting up and discussing their collective assets. The Claimant asked the Defendant "Do you intend on removing your name off the house?", to which he replied:
I give my full consent to be removed of the mortgage at 41 Newbury avenue EN3 6EF.
I can be present to sign any documents needed.
Not seeking any financial interest in the property.
Two days later however he wrote again to say "I retract my consent from removing my name of the mortgage and seek Financial interest in the property."
In his evidence the Defendant said he had only sent the email releasing his interest as he had been told the Claimant would consider reconciliation of their relationship if he did.
The argument the Claimant wished to pursue was that these emails were enough by themselves to meet the statutory requirements for an express release of a beneficial interest in accordance with s53 (1)(a) and (c) of the Law of Property Act 1925, which provide:
Mr Justice Edwin Johnson however refused to permit the new argument due to the lack of clarity in the matrix of fact surrounding the emails and given the emails and their circumstances had not formed a significant part of the evidence given at the trial. He did not go on to consider the argument itself, but was not able to say it would not have succeeded.
In his judgment much consideration was given to the similar Court of Appeal case of Hudson v Hathway [2022] EWCA Civ 1648. In that case a similar argument, relying on emails containing an express agreement to give a beneficial interest in a property, was allowed to be considered on appeal, despite not forming part of the case below, and succeeded. The difference was said to be that the facts were clear, and the issue a pure point of law.In considering the issue the court found that the emails amounted to a release of a beneficial interest in land as the emails were writing, and “signed” electronically, so enough to meet the requirements of s53(1)(a) and (c) of the Law of Property Act 1925.
Given what happened in both Dervis v Deniz and Hudson v Hathaway, and the last minute attempts to rely on arguments not originally included in their respective cases, and from our own experience in arguing similar cases, there is a trend of parties in trust of land disputes overlooking the first steps of an inquiry into the facts of such cases, and heading off straight to looking for common intentions, and detriment to establish common intention constructive trusts, despite their being no room for such a trust at the time of purchase where there was an express declaration of trust included in the transfer, unless there was a mistake or fraud, as referred to at the outset of the tests set out in Stack v Dowden UKHL 17 and Jones v Kernott [2012] 1 AC 776.
The transfer for a purchase of land is almost always easy to obtain from HM Land Registry online in a manner of minutes, and so there is no excuse for the correct beneficial starting point not to be arrived at. Where there is such a declaration of trust, the case cannot be that the parties always impliedly held the property on trust of different terms. If a client is not happy with what was recorded on the transfer, their case may be that the transfer was signed by mistake, or under undue influence such that the transfer should be set aside or rectified. If they do however accept the declaration on the transfer was correct as that time, they may still have a case for different shares in the property, for example (i) if, in exceptional circumstances there was a later common intention reached and which can be proved, for example upon the parties splitting up and one leaving the home, and detrimental reliance on that intention (such as a party taking over the full mortgage and cost of repairs), or (ii) upon taking an equitable account to make fair adjustments to the shares based on the parties conduct.
This case, (Dervis v Deniz) is a good example of why it is important to get the case right from the start, and why taking good legal advice is essential.
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