WhatsApp messages and equitable interests in land

In December, Mr Justice Cawson considered submissions in Reid-Roberts and another v Lin and another on whether an exchange of WhatsApp messages satisfied s 53(1) of the Law of Property Act 1925, which requires a disposition of an equitable interest to “be in writing signed by the person disposing of the same”.

The brief facts were as follows. In 2009 HL and AG married and purchased their family home in London (the “FH”). They separated permanently in 2017 and divorced in 2020. The court ordered AG to transfer his interest in the FH to HL. At that hearing, AG belatedly disclosed that he had been declared bankrupt seven days previously, following service of a statutory demand in November 2019.

In February 2023, AG’s trustees in bankruptcy applied for a declaration as to the ownership of the FH and an order for sale. HL argued that AG had already transferred his beneficial interest in the FH to her in 2018 (pre-bankruptcy), relying on the following WhatsApp exchange:

AG:
“I suggest that the responsibility of taking care of the kids goes to u 100%, then I can sign over my share of Southcote Road to u without any complications as I don’t need any accommodation in London.”
“Please let me know that u r happy with this and we can then close the financial part of the divorce this week.”

HL:
“with some monthly maintenance then ok.”

AG:
“It goes without saying the monthly maintenance for the kids in accordance with CMS.”

The trial judge found that there had been an immediate disposition and that the requirements of s 53(1) had been satisfied, but held that the disposition was ineffective by virtue of Xydhias v Xydhias [1999], which establishes that agreements reached in the course of divorce proceedings require court approval. The judge therefore declared that HL and the trustees each owned 50% of the FH, with the property to be sold after 31 July 2032, when HL’s youngest child reached 18.

The trustees appealed the delay to sale. HL cross-appealed, maintaining that AG had disposed of his beneficial interest in 2018.

The appeal: intention to dispose

On appeal, Mr Justice Cawson held that the trial judge had been wrong to find that Xydhias prevented a disposition altogether. However, he concluded that there was no evidence that AG intended to effect an immediate disposition of his beneficial interest.

While accepting that WhatsApp messages are capable in principle of evidencing the requisite intention, the judge observed that the informal nature of WhatsApp communications generally does not suggest an intention to dispose of a significant interest in property. In the wider context of the case, the language used pointed to negotiations forming part of an overall financial settlement rather than an immediate and operative transfer.