What to do if the judge gets it wrong: Appealing decisions in jointly owned property cases

If you are a joint owner of property, and a dispute arises between you and the other joint owner(s) (e.g. about shares in the property or whether the property should be sold), one of the joint owners can issue legal proceedings under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”).

If the matter goes to trial, the trial judge will typically make an order that covers the following:

1. Order for sale. The usual order in a joint ownership dispute is for a sale on the open market. The judge may allow one or more parties the right to bid for the property. Alternatively, the judge may allow a party to purchase the property at a court-assessed price. This is informally known as a right of pre-emption.
2. Beneficial interests or shares in the property. For example, the judge might order that the parties own it in 50:50 shares, or 80:20 shares, or 100:0 shares.
   

If you act quickly, it might be possible to appeal the trial judge’s decision. Usually, you can only appeal the decision if it was made less than 21 days ago. Preparing the appeal application is time-consuming – it could easily take 14 days or longer – so the sooner you obtain legal advice the better.

You must have proper legal grounds for the appeal: for example, if you can show that the decision was wrong because of a serious mistake or because the correct procedure was not followed.

Order for sale

A judge’s decision to order the sale of a property will not be “wrong” merely because it seems unjust (e.g. because you and your children live there, and you cannot afford to re-house yourselves). The judge is required to consider the factors under section 15(1) of TOLATA when deciding whether to order a sale. These factors include the purposes for which the property is held; the interest of the mortgage lender; and the welfare of any minor children living in the property or who might reasonably be expected to occupy it (not an exhaustive list). None of these factors take priority over the other.

The judge can also consider the wishes and circumstances of beneficiaries, under section 15(3) of TOLATA.

If the judge refuses to consider some or all the factors under section 15(1) and section 15(3), you may be able to appeal the decision. This is what happened in the recent case of Savage v Savage [2024] EWCA Civ 49.

In Savage v Savage, several family members had a beneficial interest in parcels of farmland. Frank (a minority beneficiary) operated his businesses from those parcels. Frank wanted a right of pre-emption, and he was supported in this by other minority beneficiaries. Frank’s uncle Raymond, the majority beneficiary by value, wanted an immediate sale on the open market. At first instance, the district judge granted Frank a right of pre-emption. The appeal judge overturned the district judge’s decision and ordered a sale on the open market without any right of pre-emption. The appeal judge’s reasoning was that, under section 15(3) of TOLATA, the court was prevented from having any regard to the circumstances and wishes of the minority beneficiaries, and the only wishes and circumstances that could be considered were those of Raymond. Frank appealed the appeal judge’s decision to the Court of Appeal. The Court of Appeal held that the appeal judge had misinterpreted section 15(3) TOLATA and misapplied it to the facts of the case – the court was entitled to consider the wishes and circumstances of minority beneficiaries. Accordingly, the Court of Appeal restored the district judge’s original order. 

Beneficial interests

A judge’s decision on beneficial interests will not be “wrong” merely because it seems unjust (e.g. because it seems to ignore the fact that you paid all the purchase price or mortgage payments). The judge is not entitled to override the established laws on the creation and transfer of property rights, merely because the application of those principles produces what might appear to be an unfair outcome.

Unless there is a written declaration of trust, the law presumes that the beneficial ownership mirrors the legal ownership. In other words, if two or more people own a property in their joint legal names, the law presumes that they own the beneficial interest in equal shares. This presumption can be overcome in some circumstances. For example, if you are not a legal owner of the property, you might still be able to prove that you have a beneficial interest under a common intention constructive trust. However, you will need to prove that there was a common intention between you and the legal owner that you would have a share in the property, and that you relied on that common intention to your detriment. For more information on this type of trust, see our previous article: https://www.birketts.co.uk/legal-update/how-can-i-prove-that-i-own-a-share-in-a-property/

For an example of an appeal concerning beneficial interests, see the case of O’Neill v Holland discussed in our previous article: https://www.birketts.co.uk/legal-update/can-i-bring-a-claim-against-my-ex-partner-for-a-share-of-the-propertys-equity/. The district judge held that Ms O’Neill had a 50% interest in the property under a common intention constructive trust. Her ex-partner Mr Holland appealed the decision to the High Court. His appeal was successful: the High Court found that the crucial ingredient of detrimental reliance by Ms O’Neill had not been pleaded by her nor established by the district judge’s findings of fact, and that therefore Ms O’Neill did not have a 50% interest. Ms O’Neill appealed to the Court of Appeal. Her appeal was successful. Although the Court of Appeal agreed that detrimental reliance was crucial, it ruled that the High Court judge had adopted too narrow a view of the district judge’s findings of fact. The High Court was wrong to have taken the view that detrimental reliance had not been pleaded sufficiently, or at all, by Ms O’Neill.

Conclusion

If you believe the judge has made a wrong decision, you should take urgent legal advice on the merits of an appeal.

Even if you decide not to appeal, there may be other options open to you. For example, if you had solicitors acting for you when the matter went to trial, you might be able to bring a claim against them in professional negligence. You will need to establish that they breached their legal duty to you (for instance, that they provided you with legal advice that was incorrect) and that this breach caused you to suffer loss.

You could also try to negotiate with your opponent. For instance, if the judge has ordered that your home be sold on the open market within six weeks, and you want to delay the sale for 12 weeks to allow you more time to find another home, you could contact your opponent to see whether they will agree to this delay. Even if your opponent is an unreasonable person, they may prefer to compromise rather than incur the annoyance and potential costs of further litigation.

For more information about the topics covered in this article, please contact Stephanie Butler.