Beneficial interest

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    I realise that this is probably an ‘it depends’ question, but here goes anyway…

    An unmarried couple purchase a property in July 1988, both signatures being on the deed transferring ownership, both names subsequently being entered on the Land Registry records as joint freeholders. The female partner does not put any money into the deal (confirmed by her now ex-partner, who is still miffed that she kept all of the proceeds of sale of her former property to herself…although she denies having ever owned any other property). The couple also have a son, two years old at the time the property in question was purchased, who lives with them.

    The couple split up in October 1990 and the male partner leaves the household. Female partner now resides alone with her son in the property. She claims Housing Benefit as she (allegedly) believes that her ex-partner has transferred ownership of the property to her father, who begins to charge her rent. (The former partner states that he transferred the mortgage to the father, who gave him ‘a few thousand pounds’ – we have no evidence of such a transaction, which was supposedly a verbal deal only.) The Land Registry records have never been changed, and the claimant (as she now is) states that she never considered herself an owner as she did not put any capital up for the purchase of the property, that she has no recollection of having signed the deed transferring ownership, and that she had no idea she had any interest in the property until she was shown the Land Registry documents during an interview under caution.

    I think it is obvious that she has a beneficial interest in the property, but I am wondering at what date could I assume that interest to have originated?


    Likely but not obvious from what I can see and its a potential nightmare anyway:

    Legal ownership is pretty much beyond doubt but beneficial…

    I assume the former partner knows the address of the property your claimant owns? If so an office copy should demonstrate this.

    Does not putting up capital mean she did not contribute to the deposit or did not help with the mortgage either. Was there any agreement between them regarding the property while they were still together and if so how is it evidenced?

    Not sure whether the courts would treat it as jointly owned property, I think that it partly depends on how long the relationship had existed.

    Has she been paying rent to her former partner – if not was she living there with his agreement or as discharge of his responsibilities as an absent parent under the matrimonial causes act? – if not (depending on when he transferred the property to her father) he may well have lost the ability to enforce any rights over the property but and she could, in effect, have the whole kit’n’kaboodle 12 yrs after he moved out.

    Also, transferring a mortgage for a few thousand pounds?


    We assume that she and the former partner were a couple from at least the time of the son’s birth, which would be 4 and a half years, over two years of that spent cohabiting in the property in question. The former partner is aware that the claimant still lives at the property.

    The former partner didn’t transfer ownership to the father, he ‘sold’ the outstanding mortgage to him for a mediocre payoff. (Former partner says he ‘despises’ his ex and was glad to get shot of her.) The former partner also says he has no interest in any title he may have to the property, he washed his hands of it in lieu of maintenance. There is no documentary evidence regarding the mortgage transfer, as daddy wouldn’t do anything so vulgar as to insist on something in writing. So the inference is that there was a gentleman’s agreement that the father would assume responsibility for the mortgage payments, but the mortgage was not actually put into his name. The father is now dead, so we can’t get his side of the story.

    Both parties are agreed that the claimant did not put any money down for the deposit. We don’t know if she helped pay the mortgage while they were cohabiting or not.

    There is a lot more to this case, which is pending a joint prosecution for total overpayments of around £100,000. The decision under appeal, however, seems to be based solely on Reg 12(2)(c) of the HBR 2006 (decision makers here don’t quote regs…or if they do, they quote the wrong ones). Having just read the commentary in Findlay on Reg 10(2)(c) of the HBGR 1987 (same wording as the new reg), it appears we don’t have to show that she has a beneficial interest anyway. This is by virtue of the Court of Appeal decision in [i:91f7a6c0f4]Burton v New Forest District Council 2004[/i:91f7a6c0f4], so unless that decision has been superceded it would appear we have her cornered…?

    Apologies – the commentary is actually in relation to Reg 2 HBGR 1987, definition of an owner, no change to that in the new regs. And I’ve just noticed she has just turned 60, so if I modify the decision I guess I’ll have to use the HB (Persons who have…etc) Regs 2006…


    I’m confused 😕

    How can you buy a mortgage – a mortgage is basically a loan secured on property. If ownership of the property has not changed dad has spent £XX to put himself into £XXX debt – this is assuming it is possible which I doubt (Unless dad has bought a future interest and agreed to pay off the mortgage as well as paying SiL some cash) – unless daddy was the original lender?

    If your former partner has “washed his hands of it in lieu of maintenance” then he has essentially “gifted” her his share in the property and I can see no way there can be any question as to beneficial or legal ownership although the fact his name is still on the land reg is strange


    He didn’t buy the mortgage, that’s why I put sold in inverted commas…it was basically a handshake agreement that the father would pay the mortgage, and give the ex-partner some cash as recompense for his share of the equity in the property. I don’t believe that the mortgage was ever in anybody’s name than the ex-partner (or possibly both partners).

    I like the idea that he has gifted his share to her…


    Hi Andy,

    In my view you are quite right that Burton applies – this is still good law and so long as she is the legal owner or co-owner then you don’t have to look any further than the name on the land registry.

    It’s an interesting decision and one of the CA judges suggested that the justification for what might otherwise be considered a somewhat harsh rule, is to save LAs from the onerous task of trying to establish whether a HB claimant has a beneficial interest in the property they live in.

    The ins and outs of how the courts will calculate the extent of her interest are very complicated indeed and your stituation is made all the more confusing by the arrangement between the father and son – which in my view may be unenforceable (the son appears to have attempted to sell his beneficial interest and the present authorities appear to be unclear as to whether such a transaction must be in writing in compliance with the Law of Property Act 1925).

    Mercifully I don’t think you need to worry about it! Burton was reported as R(H) 7/05 and is available on the DWP website – otherwise I can send you a copy.


    Thanks for that, CJ, most reassuring…I’ve got a copy of the decision off the OSSCSC site, but thanks for the offer.

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