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.

The ‘signature’ requirement under s 53(1)

The judge also found that the WhatsApp messages were not “signed” for the purposes of s 53(1). In reaching that conclusion, he considered a line of authority including:

• Holmes v Mackrell (1858), where a defendant’s name at the top of a document was sufficient authentication.

• Tourret v Cripps (1879), where a printed heading “Memorandum from A.B” was sufficient.

• J Pereira Fernandes SA v Mehta [2006], where an email address did not constitute a signature.

• WS Tankship II BV v The Kwangju Bank Ltd [2011], where a system-generated header amounted to a signature because the bank had caused it to appear by sending the message.

• Hudson v Hathway [2023], where a typed name in an email sign-off (“Lee”) was sufficient.

HL argued that AG’s name in the WhatsApp header constituted a signature. The trustees contended that it was analogous to an email address.

Mr Justice Cawson agreed with the trustees. He held that the WhatsApp header was generated by the platform and related to the entire chat, not the individual messages. Crucially, AG had not caused the header to appear; it had been set by HL. The header was therefore analogous to an email address rather than a deliberate authenticating mark.

Accordingly, even if AG had intended to dispose of his beneficial interest, the statutory requirement of a signed writing would not have been met.

Practical implications

Despite the ubiquity of digital messaging, this is one of the first detailed judicial examinations of whether informal messaging platforms can satisfy s 53(1). WhatsApp was launched in 2009, with other platforms such as Messenger and Instagram offering similar functionality, including persistent identifiers, timestamps and user photographs.

The decision underlines the risks of informal negotiations conducted via social media, particularly where parties are unrepresented. The outcome may well have been different had AG signed off his messages with his name, or had the communications been in a format where the identifier is clearly set by the sender and attached to the individual message. While the court did not decide the point, it is at least arguable that certain social media formats could satisfy the signature requirement in future cases.

For practitioners, the message is clear: parties should be advised to proceed with caution when discussing property interests informally online. What may appear to be casual negotiation can carry real legal consequences, even if — as in this case — the statutory formalities ultimately provide a safeguard.

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