University Property Law: Modern Analysis of Burns v Burns Case

This report analyzes the landmark property law case of Burns v. Burns, focusing on the complexities of co-ownership and beneficial interests in the context of unmarried couples. The project examines the original 1984 decision and re-evaluates the case under modern UK property law, specifically considering the scenario if the events had occurred later, in 1996, and were judged in 2018. The analysis incorporates key legal concepts such as joint tenancy, tenancy in common, constructive trusts, and the influence of equity. It also references the book 'Feminist Judgments' to provide an alternative perspective on the case, considering how feminist legal theories could have influenced the outcome. The report explores the evolution of family law and the significance of both financial and non-financial contributions to property ownership, highlighting the shift towards a broader understanding of co-ownership rights. The report emphasizes the importance of equity and how it can provide remedies where common law fails to deliver justice. Overall, the report offers a detailed overview of property law principles and their application to the case, providing valuable insights into the evolving legal landscape.

Running head: RESEARCH PROJECT ON PROPERTY LAW
RESEARCH PROJECT ON PROPERTY LAW
Name of the Student:
Name of the University:
Author Note:

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Introduction:
The instant research project refers to the famous Property law case of Burns vs. Burns
that refers to the questions involving the beneficial entitlements as well as rights of the
cohabitants who are not married in England. It is known that law and society both are dynamic,
both changes time. With time, people changes, their behavior, culture, practice also change. The
law has to change accordingly so as to cope up with the changing socio-political scenario.
Hence, new amendments are made time-to-time and new acts are legislated to meet the need of
time. In this project, the case will be decided according to the recent laws and legislations of
United Kingdom. This particular case deals with the aspects of joint property ownership or
tenancy in common, to be more specific. The instant case was decided in 1984 when the law of
co-ownership had very limited approach and its scope was very narrow .The case will be decided
as if the same situation occurred eighteen years later, that the house was constructed in 1996 and
the present law of co-ownership will be applied. While judging this case, the famous book
named `Feminist Judgments`1 is being referred. The book deals with significant and controversial
cases of United Kingdom. Those cases were re-analyzed by a group of feminist law scholars who
had put theory into reality and they had re-written the ‘missing’ feminist decisions in those cases.
Previously, benefits of any property are applicable to married people or where there lies any
express conditions regarding share in the property. Present law of co-ownership has very wide
approach and wide scope which are illustrated in the following part of this article.
1 Hunter, Rosemary, Clare McGlynn, and Erika Rackley, eds. Feminist judgments: From theory to practice.
Bloomsbury Publishing, 2010.

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Discussion:
The leading case of Burns v. Burns2 refers to the situation where the complainant Valerie
Burns was living with the defendant, Patrick Burns in the same house for 19 years. Though they
had been living together for so many years they did not marry but Valerie was using his name.
They had two children also. They purchased a house together but it was in his name only. Patrick
paid the cost price plus all the recurring payments of mortgage. Valerie though did not make any
contribution towards the house but she paid for household expenses along with she raised their
children and performed all domestic obligations as the house lady. After their separation, she
claimed for beneficial interest in the property. However it was held that as she did not make any
monetary contribution to the property, she was not entitled to any such interest. This case has
been discussed in the following part of this article in the light of present legislations and laws.
A close perusal of the instant case in the light of present scenario enumerates that it
cannot be denied that the case was wrongly decided in favor of Mr. Burns. In that period, the
scope of the property law and equity law was very narrow. Mrs. Brown’s claim did not succeed
as there was no financial participation by her. Neither had she paid the purchase money of the
house nor had she paid the monthly remuneration towards the mortgage of the house. Though
she raised the children and carried out all her duties as a house lady, court overlooked it. She also
made little contribution for house decoration which court did not consider. Court was mainly
concerned with her pecuniary contribution. Moreover, evidence of her intention that she wanted
an interest in the property was also missing. Court did not find presence of common intention
constructive trust from such payments. The mere facts that the parties lived together and did
domestic work showed no indications of their intention to change the existing proprietary rights
2 Burns v Burns [1984] Ch 317

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of either of them. Court held that if the lady of the house did not make any substantial or real
contribution towards the cost price of the property or towards the installments of mortgage, then
she would not be entitled to any share in that house. However, if they were married, the decision
of the court would definitely differ.
In the present case, if the plaintiff has to establish her rights over the property, she has to
prove that Mr. Brown held the property upon trust to give result to that interest. It was according
to Gissing v. Gissing [1971] A.C. 8863. Such trust can arise by either express declaration or
agreement or by a trust where claimant has made monetary contribution towards the property or
from the parties’ common. In this case, only the third condition can be said to be applicable
because there was no such agreement or trust. Mrs. Brown could succeed if she can show that
she has some beneficial interest in the property.
In the concerned case, court must follow the principles that were laid down in the case of
Gissing v Gissing [1971] AC 886 and Pettitt v Pettitt [1970] AC 7774. Both the cases are
concerned with the disputes of married couples where section 17 of the Married Women’s
Property Act 18825 was applied. But it is crystal clear that the section 17 of the Act is being used
only as a procedural part. In this regard, court should follow the concept of co- ownership in
liberal sense, not differentiating between married and non-married couples. However, court must
consider the facts and circumstances of each case differently. Where it is a family home taken
jointly, both man and woman of the family are eligible to share in the beneficial interest. Where
the house is purchased in cash, then the extent of their shares will be according to their respective
3 Gissing v Gissing [1971] AC 886
4 Pettitt v Pettitt [1970] AC 777
5 Married Women’s Property Act 1882

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contributions. When the house is brought by mortgage, court will not only assess the financial
contribution but also real or substantial contributions.
In the present case, Valerie and Patrick were the co-habitants of the house. They were not
married but they spent as long as 19 years together under the same roof. They had two children
and they performed their respective duties towards each other. Now the question is whether they
are co-owners or not? Co-ownership means the type of ownership where two or more persons are
simultaneously entitled to the interest or interests in a property6. The law of co-ownership is the
combination of statutory law and common law along with the Trusts of Land and Appointment
act 19967 and Law of Property Act 19258. Co-ownership can be categorized into two classes:
joint tenancy and tenancy in common9. The former is the type where each one is totally entitled
to the whole of the estate. The most crucial aspect of joint tenancy is the right of survivorship
where when one tenant dies10; the surviving tenant can inherit the share of dead tenant. Where a
co-owner does not want to use the survivorship right, he could terminate the agreement. A joint
tenancy can be converted into a tenancy in common by terminating the contract. This case can be
decided in the aspect of tenancy in common.
In dealing with this case, another leading case of Stack v Dowden [2007] 2 AC 43211 can
be referred. In this case, House of Lords for the first time had to decide two important
conditions; firstly, the beneficial interest of the unmarried couples of a family property and b) the
beneficial interest of the co habiting parties who cannot state the beneficial interest of the each
6 Duncan, William D., et al. "Property law review issues paper 4–Mortgages, Co-ownership, Encroachment and
Mistake." (2016).
7 Trusts of Land and Appointment act 1996
8 Law of Property Act 1925
9 Hayward, A. "Common intention constructive trusts and the role of imputation in theory and
practice." Conveyancer and property lawyer. 80.3 (2016): 233-242.
10 Spitzer, Anne L. "Joint Tenancy with Right of Survivorship: A Legacy from Thirteenth Century England." Tex.
Tech L. Rev.16 (1985): 629.
11 Stack v Dowden [2007] 2 AC 432

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party. Here the concept of equity was applicable. The common principle in equitable law is that
equity follows law. If the property is in the name of one party only, the other party will not be the
real owner but equitable owner.
It is known that common law is the strict form of law where emphasis is given to
legislations only. It works on legislations only. Common law courts do strict interpretation of the
acts12. The Courts of Chancery had developed the equitable law to bridge the gap between
common law and justice13. Whenever common law failed to provide justice or people are
deprived of their rights by common law, they seek help from courts of equity. Equitable law
provides a flexible form of remedy as compared to the strict rigid system of common law. Aim
of equity is not to deprive any party because of the act of the other party. It is just and fair and
provides remedy to all who are deprived by the common law court. The court of Equity is called
Court of Chancery. In the instant case though Valerie could not support her case sufficiently in
the common law court, she could get her remedies in the chancery courts.
The equitable law has undergone several stages of evolution through the past. Similarly
the concept of ‘equitable trust’ also has gone through three stages mainly. In the year of 1970,
the ‘resulting equitable trust’ model dominated and aimed on financial contributions. In the
following stages, a broader scope of contributions involved. For example, if children were born
out of a relationship, who took care of them or who brought them up? Who was the bread earner
of the family? In order to establish a relation of equitable ownership in the family, many simple
yet deep questions are to be determined. Common intention has to be analyzed. With the case of
Stack v Dowden, a drastic change in outlook was taken. Through ages, the concept of family has
12 O'Connell, Anne-Marie. "Justice and the defence of rights in England and Wales: the case of Equity." Miroirs:
Revue des civilisations anglophone, ibérique et ibéro-américaine 3/2016 (2016): 50-65.
13 Watt, Gary. Trusts and equity. Oxford University Press, 2018..

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also undergone several changes. Family does not mean all the members are to be related. Even
unmarried couples can form a family. Even, same gender couples can form family. With Stack v
Dowden, these concepts are given importance. In previous decades, this type of trust was not
available.
What becomes more important is the weighing and balancing the contributions; that is
shifting and balancing the issues of each case. Financial contributions cannot be given utmost
importance. Though Valerie could not show any financial contributions, however she had
performed other responsibilities very well. She had a bright career aspect as well. If she had
pursued that she could have supported him financially.
Hence, modern law of equity has remedies for Valerie too14. Moreover, while deciding
this case in present scenario, the famous book known as `Feminist Judgments` can be referred. In
this book, practical application of the theoretical laws was made. Feminist legal knowledge has
developed in universities and in some legal fields; it is yet to lay its steps in judicial system.
Feminist legal doctrines are yet to be applied in practically. In this book, English landmark cases
which involved rights of women, where females are deprived of their interests, are re-judged and
decided by three female scholars. They put the ‘missing’ feminist decisions in those cases. Some
cases were written in fictitious manner where some are written as additional supporting or
opposing judgment in the original case. They have provided strong examples of the manner in
which the case could have been decided then. Every case is supported by a commentary which
helps the judgment to be understood by the non-legal readers. Thus the case will be decided
against Patrick. He could not succeed only because he made pecuniary contributions toward the
house.
14 Wilson, Sarah. "Law and Equity, and “Law and History” as a Resource of Critique." Pólemos 11.1 (2017): 23-40.

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Conclusion:
From the above discussion, it appears that if the case of Burns v Burns is decided in the
present day, Mrs. Valerie Burns will succeed to establish her interest in the house. Law of equity
will allow remedy to Valerie. The Chancery judge will weigh the particulars of the case to
determine the plaintiff’s right in the property and will decide the remedy accordingly. Whether
she will get remedy in the form of damages or provide remedy in the form of injunction or
restitutions or she will be allocated to any share of the house, all these will be decided after
hearing of the either parties. Though common law court cannot provide him any remedy because
of the strictness of the act, equity will bridge the boundary. She will not be left aggrieved by the
chancery courts. If required, Chancery court will go beyond monetary remedies and grant
suitable compensation.
References:
Burns v Burns [1984] Ch 317
Duncan, William D., et al. "Property law review issues paper 4–Mortgages, Co-ownership,
Encroachment and Mistake." (2016).
Gissing v Gissing [1971] AC 886
Hayward, A. "Common intention constructive trusts and the role of imputation in theory and
practice." Conveyancer and property lawyer. 80.3 (2016): 233-242.

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Hunter, Rosemary, Clare McGlynn, and Erika Rackley, eds. Feminist judgments: From theory to
practice. Bloomsbury Publishing, 2010.
Law of Property Act 1925
O'Connell, Anne-Marie. "Justice and the defence of rights in England and Wales: the case of
Equity." Miroirs: Revue des civilisations anglophone, ibérique et ibéro-américaine 3/2016
(2016): 50-65.
Pettitt v Pettitt [1970] AC 777
Spitzer, Anne L. "Joint Tenancy with Right of Survivorship: A Legacy from Thirteenth Century
England." Tex. Tech L. Rev.16 (1985): 629.
Stack v Dowden [2007] 2 AC 432
The Married Women’s Property Act 1882
Trusts of Land and Appointment act 1996
Watt, Gary. Trusts and equity. Oxford University Press, 2018.
Wilson, Sarah. "Law and Equity, and “Law and History” as a Resource of
Critique." Pólemos 11.1 (2017): 23-40.