The matrimonial home was in the joint names of husband and wife. After the marriage broke down, the husband left the home, and the wife discharged all mortgage payments (both capital and interest). The husband was adjudicated bankrupt. The wife sought credit for the mortgage interest payments in an equitable accounting on the sale of the home.
Held: She could only have such credit against a set-off in favour of the trustee in bankruptcy for an occupation rent. If an account is taken, the party paying the instalments should not be entitled to set a due proportion of the whole of the instalments paid against the share of the other party. The mortgagee will normally have a charge on the property for principal and interest and a right to possession and sale to enforce his charge. The payment of instalments due under the mortgage operates to relieve the property from the charge and gives rise to an equitable right of contribution by the co-owner who has not paid his due proportion of the instalments.
Judges:
Vinelott J and Sir Mervyn Davies
Citations:
[1990] 1 WLR 616, [1990] 2 FLR 284
Jurisdiction:
England and Wales
Citing:
Cited – Leigh v Dickeson 1884
The principles of equitable accounting apply equally to beneficial tenancies in common and beneficial joint tenancies. The guiding principle is that neither party can take the benefit of an increase in the value of the property without making an . .
Cited – Suttill v Graham CA 1977
The husband remained in the home after the divorce and paid all mortgage instalments.
Held: An occupation rent was payable.
Stamp LJ said: ‘a beneficiary entitled to an equal share in equity of property of which he is a trustee, and which . .
Cited by:
Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Lists of cited by and citing cases may be incomplete.
Land, Equity, Insolvency
Updated: 29 April 2022; Ref: scu.183860