Trust 9 - Family homes

Question 1

What is required for an express trust of the family home

Answer 1

• agreement evidenced in writing
• Land Reg TR1 form has a section on it

Question 2

What are common intention constructive trusts?

Answer 2

Mechanism for determining beneficial ownership, reflecting common intention of the parties
Common intention can either be express or inferred

Question 3

Do purchase funds resulting trusts apply to the family home

Answer 3

No - a holistic approach is used using Common Intention Constructive Trusts

Question 4

What is the starting presumption for trusts of family homes?

Answer 4

Beneficial ownership of land mirrors legal ownership

Question 5

What is the assumption in Joint Tenancy cases

Answer 5

Own the property in equal shares

Question 6

What must be done to establish that legal title and equitable title is different in Joint Tenancy cases?

Answer 6

• Rebut the presumption of equal shares
• quantify the shares of the parties

Question 7

How is the presumption of equal shares in a joint tenancy rebutted?

Answer 7

• looking at whole course of conduct.
• requires heavy burden requiring unusual facts
• with reference to common intention
• either express or inferred
• don’t need to show reliance

Question 8

What factors are considered when determining common intention?

Answer 8

‘Whole course of conduct’

• Advice or discussions (best evidence)
• Reason legal title was registered in particular names
• Purpose for acquiring house
• Nature of relationship
• If parties have children
• Financing of home
• Arrangement of finances and divided responsibility

Question 9

Joint tenancies - Once common intention that property should be held as tenants in common is found, what must the courts do next?

Answer 9

Interests must be quantified

Question 10

Joint tenancies - Once common intention that property how are interests quantified?

Answer 10

• express intention of parties, if not
• implied by parties’ conduct
• impute an intention for ‘fair shares’ based on whole course of conduct as a last resort

Question 11

What are the cases on Joint Tenancies

Answer 11

• mother and son bought house in joint names as M needed S’s name on the mortgage - no Joint tenancy
• bought house as a couple, split up, cashed in life policy, he moved out for 14 yrs not contributing further - intention had changed therefore no longer joint tenants his interest crystallised when he moved out.

Question 12

Where a property was purchased in joint names and both contributed but kept their finances otherwise completely separate, what was held?

Answer 12

It was indicative that they didn’t want a beneficial JT or to have equal shares

Question 13

Sole legal ownership - What is the starting point for sole legal ownership

Answer 13

equity follows law, so only one party owns the property.

Question 14

Sole legal ownership - Words that indicate common intention for ownership:

Answer 14

Half yours
50:50

Question 15

Sole legal ownership - How would you establish an interest in a sole legal ownership property?

Answer 15

• common intention
• relied on it to detriment

Question 16

Sole legal ownership - Words that don’t indicate common intention for ownership (just shared occupation):

Answer 16

Family home
Benefit… both of us
You’ll be looked after

Question 17

Sole legal ownership - How else can common intention be evidenced?

Answer 17

excuses as to why partner may not be jointly registered.

However, inferences shouldn’t be drawn too readily and not inferred where legal owner made excuse to avoid an argument

Question 18

Sole legal ownership - When has inference of common intention been declined?

Answer 18

• Individual caring for her family
• Woman gave up career or worked without pay
• Despite woman making very substantial improvements to property and gave up job to work for man’s business so he could make payments

Question 19

Sole legal ownership - When has inference of common intention been accepted?

Answer 19

• substantial cash and time in converting a barn

Question 20

Sole legal ownership - What is the test for detrimental reliance?

Answer 20

Conduct inexplicable

Question 21

Sole legal ownership - What are examples of sufficient detrimental reliance?

Answer 21

• Heavy DIY
• Renovations
• Payment of substantial expenses

(Inexplicable conduct)

Question 22

Sole legal ownership - What are examples of insufficient detrimental reliance?

Answer 22

• Decorating
• Giving up work to look after children

Question 23

What is proprietary estoppel?

Answer 23

Enables a person to informally acquire property (or personal) rights to prevent unconscionable conduct

Question 24

What assurances regarding real property is proprietary estoppel encountered?

Answer 24

2. B assures A they have or will acquire a right in relation to B’s property and in reliance on that, acts to their detriment
3. A mistakenly believes they have a right in land owned by B, and in reliance on that, act to their detriment where B is aware of mistake but doesn’t try to correct it

Question 25

What are the requirements for proprietary estoppel?

Answer 25

1. Assurance (must be clear enough, can be inferred or explicit)
2. Reliance on assurance
3. Detriment due to reliance
4. Unconscionable for D to go back on assurance

Question 26

How is reliance shown for proprietary estoppel?

Answer 26

• There must be a sufficient link between assurance and detrimental conduct, but doesn’t have to be the sole cause
• Presumed reliance found where assurance made and C acts detrimentally, transferring burden of proof onto the D

Question 27

What are examples of detriment for proprietary estoppel?

Answer 27

• Expenditure,
• providing services without payment or less than market value,
• passing up opportunities,
• subordination to D

Question 28

What remedies are there for proprietary estoppel?

Answer 28

• Transferring ownership
• Holding property on trust
• Granting C property/personal right
• Paying money

Question 29

What principles regulate exercise of court discretion over the remedy used for proprietary estoppel?

Answer 29

1. shouldn’t exceed C’s expectation
2. may satisfy C’s expectation, but not required
3. proportionate to C’s detriment