Establishing a beneficial interest
Establishing a beneficial interest

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Establishing a beneficial interest
  • Express declaration of trust
  • Court rulings after Stack v Dowden
  • Practical implications
  • Sole legal ownership

Where two or more people together own real property, they hold it under a trust of land. Where property is held on a trust of land, the legal estate and equitable estate are separate. The legal estate must be held by the co-owners as joint tenants. The beneficial interest in the property can, however, be held by the co-owners either as:

  1. joint tenants, or

  2. tenants in common

If the co-owners are joint tenants, each has an indivisible share in the property, where each owns the whole, rather than an identifiable share of the property. The right of survivorship applies so on the death of one joint tenant, the deceased's interest in the property passes automatically to the other(s).

Where the beneficial interest is held as tenants in common, interests can be unequal, and the share of one does not pass to the survivor but is part of the deceased's estate.

Express declaration of trust

An express declaration of trust as to the beneficial interests is conclusive unless there are grounds to set it aside or the interests are subsequently varied by deed, or by the operation of a common intention constructive trust or a proprietary estoppel. A common intention constructive trust cannot take effect at the same moment as the express trust. The express trust is conclusive.

In Pankhania, the Court of Appeal