Real property, real impact: the defining cases of the 21st century

Article by Mark Galtrey and Zihang Liu, 19th January 2026

This article was first published by Estates Gazette here.

Back in the 20th Century, the law of co-ownership of property was hard-nosed and clear: if you wanted a share of the property, you needed to have paid a share of the price, and the more you had paid, the larger your share. Those who had made valuable contributions to a relationship other than the payment of money got nothing. Then a seismic change: in Stack v Dowden [2007] UKHL 17; [2007] PLSCS 82 and Jones v Kernott [2011] UKSC 53; [2011] PLSCS 264, the highest court in the land crafted a radically new conception of the law, where contributions of all sorts were to be valued and rewarded. Nothing has been the same since, and the world is a fairer and better place…or so an eager law student might tell you. The reality is more complex, and more interesting.

Stack v Dowden

In truth, the judges in those famous cases did not think that they were radically changing the law. Since Lloyds Bank v Rosset [1991] 1 AC 107, it had been clear that a trust over co-owned property could be inferred from the conduct of the parties, even if Lord Bridge considered it “at least extremely doubtful whether anything less” than a financial contribution would suffice. Little attention was given to whether the trust would be a resulting or constructive trust, because the outcome would likely turn on the size of the financial contributions in either case.

In Stack, the court considered it was dealing with an “exceptional case”. In most cases where legal title to property was held in joint names by a couple, the beneficial ownership would simply be owned 50/50. Any party asking the court to depart from that would face a “heavy burden”, and the task of investigating the parties’ intentions should not “be lightly embarked upon”, not least because it is “unlikely to lead to a different result unless the facts are very unusual”.

The problem was also thought to be a “temporary and transitional” one. As Baroness Hale explained, rapid simultaneous increases in home ownership and co-habitation by unmarried couples, without either legislation or conveyancing practice having caught up, had left many unmarried couples jointly owning property without an express declaration of trust. There was “reason to hope” that the problem would resolve itself as conveyancing practice or statute caught up with societal change, and that there would be a “diminishing number” of similar cases.

However, in this “unusual case”, the parties had, despite a long relationship, always kept their finances separate, so there was sufficient evidence to displace the presumption of parity between them. The actual result was simply to uphold the Court of Appeal’s split of 65/35 (based predominantly on the parties’ financial contributions) as a permissible one. The long list of other factors identified by Baroness Hale actually played no part in the outcome.

Jones v Kernott

The twin hopes that the issue might soon resolve itself, and that the number of similar cases would be small, were both dashed. Before the judgment in Stack was a year old, the principles it set out had been argued in front of the Court of Appeal five times, as well as the Privy Council, and the flow of cases did not dry up.

By the time of Jones, criticism of Stack from academics was mounting. In their joint leading judgment in Jones, Lord Walker and Baroness Hale took what they saw as “an opportunity for some clarification” of the decision in Stack.

One of the earliest issues that had arisen was the contexts to which the principles in Stack would apply. Within the first year, the courts had held that they did apply to the property bought by a mother and her son to live in, but (in Laskar v Laskar [[2008] EWCA Civ 347; [2008] 2 EGLR 70) that property bought by a mother and daughter as an investment was a different matter.

In Jones, Lord Walker and Baroness Hale, while holding that there was an exception to the Stack principles where there was a presumption of a resulting trust, only sought to “make it clear… that in the case of the purchase of a house or flat in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage” there was not such a presumption. But what about co-ownership in other contexts?

The cases that followed in the wake

It did not take long for the issue to arise again. In Geary v Rankine [2012] EWCA Civ 555, one member of a couple had bought a property during the relationship in order to jointly operate a business from it. Lewison LJ held that the burden of establishing a common intention constructive trust was “all the more difficult to discharge where… the property was bought as an investment rather than as a home”. He went on to say that the exception from the Stack principles where there was a presumption of resulting trust “may arise where the partners are business partners as well as domestic partners”.

It seemed that a divide was opening between family homes and investment properties, even those bought by families. However, in Marr v Collie [2017] UKPC 17, a Board of the Privy Council that included both Baroness Hale and Lord Neuberger (who gave the leading judgment in Laskar and advocated for a resulting trust analysis in Stack) decided a Bahamas case where a couple had jointly acquired investment properties during the relationship. The trial judge, citing Laskar, had held that Stack was confined to the “domestic consumer context” and that the presumption of resulting trust applied instead.

The Board disagreed, saying that Laskar “did not intend to draw a strict line of demarcation between… the purchase of a family home and… the acquisition of a so-called investment property”. In deciding whether to apply the constructive trust or resulting trust analysis, “the answer is not to be provided by the triumph of one presumption over another. In this, as in so many areas of law, context counts for, if not everything, a lot”.

A legacy of uncertainty

That may well be true, and true to the spirit of the courts of equity in doing justice in each case. But it is, to put it mildly, unhelpful for practitioners who have to advise ordinary people whether they should embark on expensive and stressful litigation.

The reach of Stack and Jones is so wide that this article could easily have focused on other areas of uncertainty that continue to arise: what evidence can demonstrate a common intention (Williamson v Sheikh [2008] EWCA Civ 990, Hameed v Qayyum [2009] EWCA Civ 352 and Graham- York v York [2015] EWCA Civ 72), or what will constitute the necessary detrimental reliance on that intention (Hudson v Hathway [2022] EWCA Civ 1648; [2022] EGLR 10, Hevedi v Hevedi [2025] EWHC 1976 (Ch) and Manolete Partners plc v Rahman [2025] EWHC 1384 (Ch))?

The common theme is that the subsequent cases on all these issues have created a complex and sometimes contradictory tapestry of factors to consider when advising clients as to their prospects. The hoped-for reforms of legislation and conveyances are no closer, and so the cases that flow from Stack, far from being “exceptional” and “diminishing”, are a common and continuing source of anxiety and stimulation for all property practitioners.