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  1. What did Lady Hale mean by "the survivor was authorised to give a receipt for the capital moneys"?

  2. As she wrote 'survivor', did someone die?

  3. Is "receipt" here like a receipt from a department store?

  4. Why is this factor — that "the survivor was authorised to give a receipt for the capital moneys" — relevant, in determining if the joint legal owners had a common intention that their beneficial interests should differ from their legal interests?

Martin Dixon, Modern Land Law (12 edn, 2021, OUP), p. 182.

4.10.6.1.3 Route 3: inferred common intention from the parties’ entire course of conduct

The majority judgment in Stack (Lord Neuberger disagreeing in part as to the reasoning) sets out to make it easier for a claimant to establish a common intention and thereby an equitable interest in land belonging to another. The Stack reasoning is adopted and approved in Kernott and has since been adopted in acquisition cases as indicated above. The essence of the matter is that it is permissible to infer199 a common intention as to ownership based on the parties’ entire relationship with each other. It was not necessary to limit the enquiry to promises or payments. The evidence for this common intention can come from a range of factors because, according to Baroness Hale in Stack (who gave the leading judgment and which is approved explicitly in Kernott), ‘context is everything’.200 Thus, to establish a common intention it is possible to rely on

Then Dixon quotes from the second sentence of para. 69 by Lady Hale in Stack v. Dowden (Respondent) [2007] UKHL 17.

Many more factors than financial contributions may be relevant to divining the parties' true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties' relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. [I skip rest of para. 69.]

199 In Stack, there is some argument as to whether this intention is an ‘inferred’ or ‘imputed’ intention. Lord Neuberger is happy to infer an intention, but not to impute one. An inferred intention is a real intention that arises from the facts; an imputed intention is one that the court thinks the parties would have had, had they thought about it. Inferred common intention has the approval of precedent, but imputed intentions were rejected by the House of Lords in Gissing v Gissing (1971). Kernott makes it clear that this is inferred intention. It is now clear that the court cannot impute an intention in either acquisition or quantifcation/variation disputes (Capehorn v Harris, Barnes v Phillips (2015)), although some cases are still unclear in their reasoning (Rothschild v De Souza (2018)).

200 Stack v Dowden at paragraph 69. The same point is made in Marr v Collie (2017).

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1: this means just what it says: that if one owner dies, the surviving owner is authorized to dispose of the property.

2: no. This is about provisions for the possible future death of one of the co-owners.

3: yes.

4: Because it shows whether the joint owners intend, in the event that one dies, that the other should be able to dispose of the property alone. This in turn informs the evaluation of the joint owners' intention regarding beneficial ownership.

The discussion of the issue begins in paragraph 50.

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