The equity of exoneration: tenant in common charging her share to protect property from partner’s creditor

Insol Funding Company Limited v Cowlam ([2017] EWHC 1822 (Ch)) also raised the question of the equity of exoneration.

Ms Cowlam co-habited with Mr Cowey. They were equitable tenants in common of the family home (‘the property’). Insol was Mr Cowey’s creditor with an equitable charge over Mr Cowey’s share in the property. It sought an order for sale of the property.

To protect her rights in the property, Ms Cowlam agreed to pay Insol GBP 330,000. This was to be treated as part payment of Mr Cowey’s debt. Ms Cowlam granted Insol an equitable charge over her share to secure the sum that she had agreed to pay.

Ms Cowlam claimed to have a proprietary right over Mr Cowey’s share by virtue of the equity of exoneration. This would arise on the date when she charged her interest with the payment of the sum due under her agreement with Insol ([38]).

Ms. Cowlam argued that in granting the charge and in making payment to Insol, she had charged her share with the payment of part of Mr Cowey’s indebtedness to Insol ([35]). Ms Cowlam argued that she had become a guarantor or surety for Mr Cowey’s indebtedness and was entitled to be exonerated out of his share ([113]).

Master Bowles explained that:

‘an equity of exoneration can arise in circumstances where property is charged for the benefit, not of the chargor, but as security for the debts of another and that, where such an equity arises, the chargor is to be regarded as a guarantor, or surety, for the debtor and can look to the debtor for indemnity, or exoneration, in the event that the charge is called upon.’ ([114]).

The equity is proprietary as well as conferring personal rights as against the debtor ([114]). Master Bowles saw no reason why it should not entitle the person claiming it to security over the debtor’s property ([114]).

The equity of exoneration arises from the ‘express, implied, or presumed, intentions of the parties’ ([115]). It was not available here. Ms Cowlam ‘entered into the settlement agreement, in her own right and for her own reasons and was, in so doing, acting purely as a volunteer’.

Michael Lower

 

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