TOLATA: Khan v Khan [2024] EWHC 2491 (Ch)
Case background
It can be hard to decipher whether there is a shared family understanding about their properties when it is most often not written down in a formal manner.
In that case, the Court would consider the conduct of the parties, including their correspondence. Under section 53(1)(b) of the Law of Property Act 1925, in order to create an express trust of land, this must be ‘manifested and proved by some writing signed by some person who is able to declare such trust or by his will’. In the recent case of Khan v Khan [2024] EWHC 2491 (Ch), the Court had to consider whether an email could be sufficient to create a declaration of trust.
The Claimants (i.e. Ahmed, Sarwar, Shalima, Farhana and Jennifer Khan) and the Defendant (i.e. Muhammed Khan) are siblings and children of Fatima Khan (Mrs Khan) and the late Abdul Khan (Mr Khan), who suddenly passed away in 2008 without leaving a Will.
The claim concerns the beneficial ownership of four properties in Greater London (Properties):
- 14 Stapleton Road, Tooting Bec;
The legal title to the leasehold is held by the Defendant and the legal title to the freehold is held by Ahmed.
- 7 Essex Grove, Upper Norwood;
The legal title to the leasehold is held by the Defendant and the legal title to the freehold is held by Ahmed.
- 53 Norbury Crescent, Norbury; and
The legal title to the freehold is held by the Defendant and is subject to a lease to a business in which the Defendant has an interest.
- 5 Ullswater Road, West Norwood
The legal title to the leasehold is held by the Defendant and the legal title to the freehold is held by Ahmed.
The Claimants argued that Mr Khan intended for the Properties to be shared between the children equally by relying on various forms of evidence, including an email from 2013 where the Defendant stated:
‘I want Essex Grove out of my name by 2014. This belongs to three sisters as stated clearly. I never wanted this property in my NAME….You are not even grateful to the fact that between myself and Ahmed We have maintained, argued with neighbours, improved, fought against tenants, blood, sweat and tears, cleaned toilets. So you guys have a block of flats that have at least 40-50% equity not to mention a valuable home should you need it.’
The Claimants contended that this was sufficient proof of an express trust of the property located at 7 Essex Grove, Upper Norwood in favour of the sisters pursuant to section 53(1)(b) of the Law of Property Act 1925 and the case of Hudson v Hathway [2023] KB 345, which acknowledged that emails could satisfy section 53(1)(b) of the Law of Property Act 1925.
Decision
The Court ruled in favour of the Claimants affirming their beneficial interests in the Properties held on the De Bruyne v De Bruyne [2010] type of constructive trust (i.e. evidence of a prior agreement that the recipient of property holds on trust for others such that it is unconscionable for him to deny holding it on those trusts; and detriment is not required) and assertion of express trust of the property located at 7 Essex Grove, Upper Norwood.
The Court found that the evidence, including the emails and the conduct of the parties, supported the Claimant’s view of a shared family understanding about the Properties. The Defendant was therefore ordered to account for rental income derived and funds raised from the Properties.
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