Analysis
The parties were in a relationship from 2006. In 2008 they acquired a property in their joint names which they held as beneficial joint tenants, which was intended for use at weekends and holidays. In 2009 the parties separated. The respondent asked the appellant not to take his new partner to the property, and he agreed. The respondent spent most weekends there until the proceedings commenced and an order for sale was made. The appellant argued that he had been excluded from the property from 2009 until 2018, and claimed occupation rent. The respondent argued the appellant had voluntarily excluded himself.
The deputy master at first instance held that the appellant had been effectively or constructively excluded for three days per week, as it was unlikely he would have gone there during the week, from November 2009 until October 2015. He invited submissions as to the appropriate figure for occupation rent, based upon the findings of the jointly-instructed expert surveyor as to the market rental for an annual lease and for weekend usage.
The appellant sought a daily sum of £650 per day, three days each weekend, for half of the weekends in the year, in the total sum of £288,800. The respondent suggested a sum of £36,000, asserting that there should be a substantial discount to reflect the fact that not every weekend would have had value to the appellant.
Following Stack v Dowden [2007], the deputy master applied the provisions of ss12 and 13 Trusts of Land and Appointment of Trustees Act 1996 as governing awards of occupation rent. The deputy master rejected both parties’ calculations and made an award based upon the open market rent that would be payable for occasional weekend and short usage, on the basis of use for 24 weekends in each year, in the total sum of £59,958.
The appellant appealed, arguing that the deputy master had misunderstood the expert’s evidence and wrongly used the daily rate derived from an annual lease, rather than the rates for occasional use.
The issue to be determined was:
- (1) Had the deputy master erred in determining the occupation rent to be paid to the appellant?
Held:
- (1) In deciding the amount of payments by way of compensation under s13 of the 1996 Act, the court should seek to place the excluded beneficiary in the position he or she would have been in if he or she had not been excluded, so far as a monetary award can do so. The appellant suffered no financial loss by reason of his exclusion, but lost the opportunity to enjoy the property at weekends and holidays. That is not the same as renting a similar property elsewhere. Calculating appropriate compensation is inevitably an evaluative, rather than purely arithmetical, exercise. The market value might be a good starting point, but it is not necessarily the appropriate finishing point if it does not accurately reflect what the appellant has lost (paras [35]-[38]).
- (2) The deputy master had wrongly used a daily rate reached by dividing the annual rent by 365, rather than by the likely number of occupied days. Account had to be taken of the fact that the appellant would not have stayed at the property for four days during the week, but there should be no deduction for the fact that the appellant would not in fact have visited every weekend. Taking a midpoint between the expert’s figures for annual rental and for weekend rental, the appropriate sum was £120,000.
Appeal allowed and order below varied.
JUDGMENT HHJ JARMAN QC: [1] Dr Christopher Rowland appeals, with permission granted by Michael Green J, against the judgment of Deputy Master Hansen, concerning the amount his former partner, Ms Sharon Blades, should pay for having excluded him from the use of a jointly-owned weekend home from November 2009 to October 2015. The master awarded …Continue reading "Rowland v Blades [2022] WTLR 269"