Some TLATA cases are, to paraphrase Bing Crosby, straight down the middle: establish the beneficial interest, sort out whether the solution is occupation or sale, job done. Others (to mix metaphors) turn out to be a junction where many trust law points meet, and Begum v Issa & Ors  EW Misc B51 (CC) [HHJ Behrens] is a very good example of just such a case. Although the focus of the case was whether or not the Claimant had a beneficial interest in the property and in what way TLATA should resolve the dispute between not just the former cohabitants, but two other third parties, it takes in quite a few other issues on the way. One of these is the question of overriding interests, which I wrote about in the Southern Pacific Mortgage case here. There are also evidential points about the presumption of due execution; the Judge examines in some detail the nature and effect of TR1s in general and the specific TR1 in this case; he makes some further observations about other potential arguments within this factual matrix; and there is also a short but bracing excursion into the question of subrogation of mortgages. The specific TLATA issues were related to the Claimant’s right of occupation, payment of an occupation rent, and “equitable accounting” generally: in short, section 13/15 points. All that, and a cautionary note never to discuss property matters at family parties.
The Claimant was Narghis Begum. She had been in a relationship with the First Defendant, Nadeem Issa. The pair had participated in a Muslim marriage ceremony but they were not recognised as married under English law. In 2005 they were registered as the joint proprietors of a property called 107 Chalford Oaks. The TR1 of course contained an express declaration of trust, which in this case recorded that the parties owned as beneficial joint tenants. For our purposes it is sufficient to know that Narghis Begum did not contribute any part of the purchase price , but of course the declaration of trust provided her with a secure beneficial interest in the property.
The relationship seems to have been difficult from the first, and in 2007 a further TR1 was executed. This TR1 purported to transfer the title into the sole name of Mr Issa for a nil consideration and apparently bore the signature of Ms Begum as well as Mr Issa. By this time, Mr Issa had repaid about £50,000 of the original mortgage advance and at the same time he remortgaged the property for £45,000. The transfer was handled by a firm of solicitors. Ms Begum denied that she had executed the 2007 TR1 and her case was that she knew nothing about it until five years later in 2012. There was an issue of construction between all of the parties about what this TR1 had actually transferred – was it merely Ms Begum’s legal interest in the property, or her beneficial interest as well? This point obviously became relevant only if Ms Begum failed in her contention that she had not executed the TR1 at all. Continue reading