The Common Intention Constructive Trust (‘CICT’)

Question 1

what are the Positive effects of formalities (Fuller):

Answer 1

1. Evidence: Avoid fraud, arguments over evidence
2. Caution: Check against hasty or rash action
3. Channelling: Signalling the arrangements

Question 2

what are the Negative effects of formalities:

Answer 2

• Outcome of failure to comply can be extreme
• Agreement to share in specified proportions becomes a nullity
• SLO = One person takes all the value
• Two JLOs = Each person takes half

Question 3

what did Gissing v Gissing establish

Answer 3

• There can be a CT over the family home, in effect adjusting the property interests
• Section 17 of the Matrimonial Causes Act doesn’t give the powers of just property rights. - However, if there is a common intention that the beneficial interests in the family home being held otherwise on the legal titles then there can be a constructive trust that reflects those interest, in effect, giving rights of property adjustment over the family home to judges.

Question 4

what is the test in Appleton v Appleton

Answer 4

what is reasonable and fair in the circumstances as they have developed, seeing that they are circumstances which no one contemplated for?

Question 5

what do burns v burns and stack v dowton say

Answer 5

• The CICT isn’t a discretionary version of family law packaged up in equity.
• This is the law of property; at [61]: ‘it does not enable the court to abandon [the principles of property law] in favour of the result which the court itself considers fair.

Question 6

what was established in rosset

Answer 6

• There must be:
  1. At any time prior to the acquisition, or, exceptionally, at some later day, (a) an express agreement that the property is to be shared beneficially; and (b) detrimental reliance (i.e. changing one’s behaviour to one’s detriment in consequence); or
  2. Direct contributions to the purchase price, whether initially or by mortgage payments. – bills don’t count
• Must be an expressed agreement discussed by the parties – cannot be inferred from behaviour

Question 7

what case discusses Heavy physical labour (and reliance on a lie) when applying rosset

Answer 7

• Eves v Eves
• House was in a bad state so they both worked to fix it and she was only doing this work because there was express or implied arrangement
• common intention is that it looks like both the Eves wanted to share

Question 8

what case confirms there needs to be a reliance on a lie and indirect contributions

Answer 8

• Grant v Edwards
• he lied
• she contributed to the running of the house, in which they wouldn’t have had enough money to maintain the mortgage payments.
• There was common intention and the indirect payment are detrimental reliance – stretching the definition = awarded half share

Question 9

what did Geary v Rankine say about common intention:

Answer 9

It wasn’t enough that she thought she would have an interest. There had to be a common intention that one can deduce from the conversation. Either a narrow difference or a fundamentally impulsive one

Question 10

what was decided in rosset about Agreement to live in the property together or to renovate it as a joint venture

Answer 10

• didn’t amount to detrimental reliance
• Lord Bridge: A joint venture to renovate a house, did not amount to an implied agreement to share ownership. She didn’t do anything out of the ordinary

Question 11

what case states the detriment must be real and in reliance

Answer 11

• Thomson v Humphrey
• She was not on the house name and he didn’t want her to be on it. There was no agreement to share ownership of the family home.
• Giving up part-time, poorly paid work with ‘no prospects’
• it must go beyond what one would normally do

Question 12

what does James v Thomas cover?

Answer 12

• Vague assurances (e.g. ‘I will take care of you’; ‘this will benefit us both’):

Question 13

what case states that when applying rosset it needs to be convincing story

Answer 13

• Ungurian v Lesnoff
• Mrs. Lesnoff gave a graphic account of wielding a pickaxe.
• I doubt whether Mrs. Lesnoff used a tool as clumsy as a pickaxe at all.

Question 14

what case states that when applying rosset there needs to be Substantial building work

Answer 14

• Culliford v Thorpe
• The defendant plainly relied upon that agreement [to share ownership] in carrying out the significant works which he did on the Weston property, using his own labour and his own money to purchase materials, as well as occasionally paying others to do work

Question 15

what case discusses gender stereotypes

Answer 15

• Cooke v Head

- [T]he plaintiff did quite an unusual amount of work for a woman.

Question 16

what is Quantification traditionally based on + case?

Answer 16

• Springette v Defoe
• Traditionally the quantification of interests as on the basis of the proportions put in, it reflects the importance of money contributions, both in the Rosset test itself, and the simple fact is that is often what people intend, especially in the absence of other factors. - doesn’t work for cases like eves and eves

Question 17

what was evidence of an equal partnership in Midland Bank plc v Cooke

Answer 17

• was a teacher and took a lower job
• There was actually a second mortgage for which she undertook joint liability to pay
• Eventually the courts adopted a more flexible approach

Question 18

what did oxley v Hiscock say about quantification

Answer 18

• Where there was ‘no evidence of any discussion between them as to the amount of the share … each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property.’
• Supposed to be an adjustment based on the parties agreement to do so, not on some notion of fairness

Question 19

what are the two stages of emergences

Answer 19

• Acquisition Stage: Rosset, at least for single legal owner cases (Stack v Dowden for joint legal owner cases)
• Quantification Stage: Much more flexible (Stack v Dowden would later take over this stage)

Question 20

what happened in stack v Downtown

Answer 20

• First really serious consideration of a joint legal owner case – these cases are where some people didn’t want 50/50 but some of the proportion based upon monetary contributions or this elusive agreement share in different proportions.
• Reining in of appeals to ‘fairness’ (as in Oxley v Hiscock) - do not abandon the search for this common intention because this is the law of property

Question 21

what is the stack presumption

Answer 21

• The Stack presumption: equitable interests the same as legal interests unless ‘exceptional circumstances’
• Rebut with the common intention of the parties
• Cf Lord Neuberger’s dissent - The starting point is the shares should reflect the proportion of the money or value put in.
• Important where you can’t work out what the common intention is

Question 22

what are the factors in Stack v Dowden

Answer 22

1. Any advice or discussions at the time of the transfer which cast light upon their intentions then;
2. The reasons why the home was acquired in their joint names;
3. The reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys;
4. The purpose for which the home was acquired;
5. The nature of the parties’ relationship;
6. Whether they had children for whom they both had responsibility to provide a home;
7. How the purchase was financed, both initially and subsequently;
8. How the parties arranged their finances, whether separately or together or a bit of both;
9. How they discharged the outgoings on the property and their other household expenses.

Question 23

what is a criticism Quasi-Cohabitation Law?

Answer 23

• Baroness Hale suggest that an intention to share will depend on whether the parties’ relationship indicates a shared life … this was not a case of a “real domestic partnership”
• but in Graham-York v York - the court is not concerned with some form of redistributive justice

Question 24

what was the question and answer in Jones v Kernott

Answer 24

• So the question for the Supreme Court. Does the CICT respond to changing intention?
• Yes – the law accepts this

Question 25

How to work out that ‘common intention’

Answer 25

• Actual/subjective intention (starting point)
• Inferred intention (objectively deduced; both stages) - It is deduced from the words said and the acts done. The key difference is the inferred intention is what the people appear to be intending from the point of view of an objective, impartial bystander
• Imputed intention (majority: only at quantification stage if intention cannot be inferred)

Question 26

what was the expansion in stack v dowden

Answer 26

• The case concerns the ‘domestic consumer context’

Question 27

what expansion in Laskar v Laskar

Answer 27

• Resulting trust principles applied to a mother-daughter situation, the purchase of an investment flat - the resulting trust approach following the money and taking the same proportions was appropriate here

Question 28

what expansion in Adekunle v Ritchie

Answer 28

• Mother-son, a place to live in, CICT principles applied – there is a still an optimism bias

Question 29

Is the CICT applied to a small family business + case

Answer 29

• Crossco No 4 Unlimited v Jolan Ltd

- CICT applied to a commercial enterprise

Question 30

does CICT applied to flatmates + case

Answer 30

• yes

- Gallarotti v Sebastianelli

Question 31

what case is against expansion of CICT

Answer 31

• In Crossco No 4
• The CTIT was created to respond to the absence of legislation to adjust property rights for romantic couples. Such parties did not normally take advice or make formal agreements.
• Instead there was a relationship of interdependency and cooperation. This is not the case in the commercial context.
• Cf romantic couples: Have a tendency to keep their arrangements informal, and tend to have ‘optimism bias’

Question 32

what was the Curran v Collins

Answer 32

• there was a ‘reasonable belief [the non-legal owner] was to have a share’
• there didn’t need to be these express discussions the Court of Appeal was willing to infer an agreement that the legal owner and the non-legal owner were to share the beneficial interest in the house. – this part of the Rosset test has change

Question 33

In what case did the Court of Appeal endorsed the requirement of detrimental reliance from Curran and Collins.

Answer 33

• O’Neill v Holland

Question 34

name to issues with CITC

Answer 34

• Effect on commercial CICTs

- What constitutes detrimental reliance