Property disputes between unmarried cohabitants are a legal quagmire – complex, fact-sensitive and emotionally charged.
The Court of Appeal’s decision in Hudson v Hathway [2022] EWCA Civ 1648 provided welcome clarification on two significant points under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA): the role of detrimental reliance in post-acquisition changes to beneficial ownership; and the legal effect of informal digital communications on the disposition of equitable interests.
Key takeaways from Hudson v Hathway
The case involved a dispute between Mr Hudson and Ms Hathway, who jointly purchased a property, Picnic House, during their relationship. After they separated, Hudson moved out and later sent emails to Hathway stating he no longer had any interest in the property and that she should keep it. These emails, signed ‘Lee’, would later become central to the litigation when Hudson sought a declaration under TOLATA of his continued 50% beneficial ownership.
The Court of Appeal clarified two principles:
Post-acquisition agreements altering beneficial shares require detrimental reliance. A party asserting an increased share based on a later common intention must show that they acted to their detriment in reliance on that change. In Hathway’s case, her assumption of sole responsibility for the mortgage, her waiver of claims on Hudson’s pension and other assets, and her decision not to pursue child maintenance amounted to sufficient detriment.
Digital communications can meet statutory formality requirements. The court found that Hudson’s emails met the requirements of section 53(1)(c) of the Law of Property Act 1925 – that a disposition of a beneficial interest must be in writing and signed by the person disposing of it. The emails were considered ‘in writing’ under the Interpretation Act 1978, and – significantly – the typed name ‘Lee’ was sufficient to constitute a signature.
Detrimental reliance still essential
The judgment confirms that detrimental reliance remains integral to establishing a varied beneficial interest. Even where both parties agree – expressly and repeatedly – to change the original ownership proportions, such an agreement alone will not be binding unless one party has relied on it to their detriment. This preserves the equitable maxim that ‘equity aids the diligent, not the volunteer’.
Shift toward digital informality
One of the more novel aspects of the ruling is its embrace of digital correspondence. Although section 53(1)(c) is nearly a century old, the court acknowledged that communication norms have evolved. The implication is clear: emails, and potentially other digital formats such as texts or WhatsApp messages, may satisfy formality requirements for the disposition of beneficial interests – so long as they are signed, whether manually or electronically.
This invites further contemplation. If an email can release a beneficial interest under section 53(1)(c), might a declaration of trust under section 53(1)(b) – which shares the same formal requirements – also be validly made in digital form? It is a logical next step, and one which places greater evidential importance on informal written exchanges during or following property transactions.
Note of caution: Dervis v Deniz
The apparent clarity of Hudson v Hathway was tested recently in Dervis v Deniz [2025] EWHC 902 (Ch), a High Court appeal involving a similar factual scenario. Ms Dervis claimed that her ex-partner, Mr Deniz, had relinquished his beneficial interest via a series of emails. These messages included language such as: ‘I don’t want the house, it’s yours’, and ‘Not seeking any financial interest in the property’.
However, unlike Hudson v Hathway, the emails in Dervis v Deniz had not been addressed in the pleadings or examined during the trial. Consequently, the court had not undertaken a close contextual analysis of the exchanges, and no clear conclusion was reached on whether an effective disposition had occurred. The appeal was dismissed, not because the emails lacked legal effect, but because the claim had not been properly presented or supported by evidence.
This outcome is not so much a retreat from Hudson v Hathway as it is a reminder: even the most convincing informal statements will fall short if the evidential and procedural foundations have not been properly laid and explored in evidence. Context, as ever in equity, is key.
Practical implications for practitioners
For family and property litigators, these rulings reinforce the need for precision and procedural diligence when dealing with cohabitation breakdowns. Three core messages emerge:
Evidence of detrimental reliance must be robust. Practitioners should advise clients early on to record sacrifices or commitments made in reliance on property agreements, especially where formal documentation is lacking.
Digital statements can carry weight. Emails or messages that express an intention to transfer or forgo ownership should be treated seriously. Clients should be warned that informal language may have formal consequences.
Context matters. Courts will examine not only what was said but the surrounding circumstances in which it was said. An offhand email might not suffice; a sustained pattern of behaviour or consistent messaging may.
Ultimately, these cases highlight the law’s ongoing adaptation to modern forms of communication and domestic arrangements. As the boundaries of equitable ownership shift, so too must the evidential standards by which they are assessed.
Laura Tanguay is a partner and head of home ownership disputes at Birketts LLP, Ipswich
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