imp trus

Question 1

Resulting trusts are implied where a person transfers property or money to another in circumstances where it is unclear who owns …

Answer 1

…the beneficial interest. The presumption is that the transferee holds the property or money on a resulting trust for the transferor.

Question 2

Resulting trusts arise in two circumstances (Westdeutsche Landesbank Girozentrale v Islington London Borough Council). What are they?

Answer 2

A voluntary transfer/purchase money resulting trust or a due to the incomplete disposal of a trust’s equitable interests.

Question 3

A voluntary transfer occurs where X transfers property, which he already owns, to Y for no consideration. In some cases, it is presumed that X intended Y to hold the property on a….

Answer 3

…resulting trust for X. However the presumption is applied only in the absence of evidence of X’s intentions.

Question 4

Section 60(3) of the Law of Property 1925 Act has been interpreted as meaning that there is no presumption of a resulting trust after a..

Answer 4

…voluntary transfer of land (Lohia v Lohia). However it is possible for there to be a resulting trust, but there must be some evidence or an additional factor.

Question 5

A presumption of resulting trust also arises where X provides purchase money for new property – but instead of putting it in his own name, he arranges for the seller to convey the property to/purchases it in the name of Y or in the names of X and Y. There is a presumption that X intended Y to hold on a..

Answer 5

…resulting trust for X.

Question 6

In Curley v Parkes [2004] All ER (D) 344, the Court of Appeal considered what payments gave rise to the presumption of resulting trust. What were they?

Answer 6

The court in Curley v Parkes held that the payment must be of part of the purchase price (not, say, legal fees or stamp duty) and it must be made at the time of the initial purchase.

Payment of the whole or part of the deposit or any other contribution to the purchase price at the time of the purchase will qualify.

Question 7

Payment of mortgage instalments and other outgoings after the date of the purchase will not give rise to a…

Answer 7

…resulting trust.

Question 8

The presumption of advancement applies where the person making the voluntary transfer or providing the purchase money is regarded as being under an obligation to provide for the other party. When does the presumption arise?

Answer 8

(a) It arises when a father makes a voluntary transfer or purchases property in the name of his child (Bennet v Bennet)
(b) It arises when a person in loco parentis makes a voluntary transfer or purchases property in the name of a child (Bennet v Bennet).
(c) It also applies when a husband makes a voluntary transfer or purchases property in the name of his wife (Pettitt v Pettitt) and where a fiancée makes a voluntary transfer or purchases in the name of his fiancée.

Question 9

The presumption of advancement is clearly out-of-date in that it does not apply as between….

Answer 9

…mothers and children, or between cohabitees or civil partners.

Question 10

What would rebut the presumption of a resulting trust?

Answer 10

Evidence that a gift or a loan was intended would tend to rebut a presumption of resulting trust. (Loosemore v McDonnell).

Evidence that X intended to retain some power over the property would tend to suggest a resulting trust (Warner v Gurney).

Question 11

Claimants attempting to rebut the relevant presumption may produce in evidence only acts done and statements made…when?

Answer 11

at, or before, the time of the transactions, not subsequent self-justifying statements or acts (Shephard v Cartwright).

Evidence of acts and declarations after the voluntary transfer/purchase are admissible only against the party who did the act or made the declaration.

Question 12

Constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his *** interest in the property.

Answer 12

…assert his beneficial interest in the property.

Question 13

An express declaration of trust over land would have to be evidenced in..

Answer 13

..signed writing to be enforceable (s 53(1)(b) of the Law of Property Act 1925).

Question 14

A resulting trust is only available if the claimant has contributed to the purchase price at the time of purchase (Curley v Parkes). What contributions would not count?

Answer 14

Legal fees, stamp duty or mortgage payments after the purchase.

Question 15

The creation of a resulting trust does not have to comply with s 53(1)(b) (s 53(2) of the 1925 Law of Property Act) and therefore does not have to be in..

Answer 15

…signed writing to be enforceable.

Question 16

To establish a constructive trust over a family home, claimants must show a common intention (** or **) that they are to share the ownership of the home, and must have acted to their detriment on the basis of that common intention (Lloyds Bank v Rosset).

Answer 16

**express or inferred

Question 17

In the absence of evidence of an express common intention, common intention could be inferred from the conduct of the parties. Lord Bridge suggested that the only conduct evidencing an inferred common intention to share the ownership of the property was a direct contribution by the non-owning party to …..

Answer 17

…the purchase price of the property either initially at the time of the purchase or, subsequently, by the payment of mortgage instalments.

Question 18

Lord Bridge in Lloyds Bank said that once you can point to some direct contributions, the common intention can be *** inferred…

Answer 18

…readily

Question 19

Which case held that payment of household expenses will be regarded as an indirect contribution to the purchase price if the payments are substantial and are made pursuant to an agreement that the parties will share the mortgage and expenses equally with one paying the mortgage and the other paying the general household expenses?

Answer 19

Le Foe v Le Foe. This avoided such cases being decided, as the judge put it, “by reference to mere accidents of fortune, being the arbitrary allocation of financial responsibility as between the parties”.

Question 20

In Jones v Kernott, the court held that in sole legal name cases, if it was not possible to ascertain what shares the parties intended by direct evidence or by inference (which can change over time), then each party would be entitled to the share which the court considered to be fair having regard to the ..

Answer 20

…whole course of dealing. The ‘whole course of dealing’ encompasses not only financial contributions but may also include the other factors considered to be relevant evidence in Stack v Dowden.

Question 21

The factors considered in Stack v Dowden included…

Answer 21

…advice and discussions at the time of purchase, the purpose for which the house was acquired and the nature of the relationship as well as whether resources were pooled, contributions made to mortgage payments, payment of other household bills and improvements to the property.

Question 22

If a constructive trust is established, the only remedy is a *** under that trust.

Answer 22

***beneficial interest

Question 23

Proprietary estoppel would involve the claimant having to establish that there was some assurance, or understanding that she was to have some rights in relation to the property and also that in relying on this understanding, she has suffered..

Answer 23

…some detriment.

Question 24

What are the two stages of proprietary estoppel?

Answer 24

• establishing the equity (i.e. detailing what needs to be shown to succeed in such a claim) and
• satisfying the equity (i.e. deciding which remedy may be awarded).

Question 25

In establishing the equity, the legal owner has to have behaved in such a way that the claimant believes he has, or will get at some point in the future, some rights in relation to the property (the ‘expectation’), and the claimant has acted to his detriment in consequence of this belief, such that it would be *** for the legal owner to insist on his strict legal ownership.

Answer 25

***unconscionable

Question 26

What amounts to detriment?

Answer 26

• financial and personal detriment in Gillett v Holt, (whereby G worked for little pay. He incurred expenditure on the farmhouse. G refused offers of alternative employment.)
• improving the legal owner’s land in Inwards v Baker whereby a father persuaded a son to build a bungalow on the father’s land. In
• looking after an elderly person in exchange for a promise that that person would leave the house to the carer. This must be well beyond the normal family moral duties, well beyond ‘what was called for by natural love and affection’ (per Edward Nugent QC in Re Basham.
• Depriving self of opportunities for improving life and prospects (use Gillet above). In Greasley v Cooke the claimant established sufficient detriment by evidence that she had looked after the family including a mentally ill member.
• Working without adequate payment In Thorner v Major the legal owner never stated that he intended the claimant to inherit the farm (although the claimant worked for many years for him for no pay).

Question 27

Proprietary estoppel - The main principle is that the remedy should be…

Answer 27

… the minimum to satisfy the equity, that is, to award the appropriate minimum remedy to do justice (Jennings v Rice).

The remedy may be a trust interest, but it could also be monetary compensation or a right to occupy.