Trusts: 3rd Party Resulting and Constructive Trusts in Land

Question 1

Trusts of Family Home: When does it apply

Answer 1

• separation of cohabitees (not married)
• NOT for divorce of dissolution of civil partnership

Question 2

Trust of Family Home: What if Home is in sole name (General)

Answer 2

1. Express Declaration of trust
   - only if in writing and signed by legal owner
   - can dismiss if fraud, mistake or undue influence or defence of proprietors estoppel
2. Proprietary Estoppel
   - representation was made/assurance given
   - claimant relied on this to their detriment
3. Common Intention Constructive Trust
   - express/implied common intention
   - claimant relied to this to their detriment

Question 3

When is common intention constructive trust established over family home

Answer 3

1. Express of implied common intention
   - express must be express and about ownership of property
   - implied can be contribution to purchase price, mortgage payment, other household expenses to allow legal owner to pay mortgage or substantial renovation
2. Reliance to their detriment
   - may be above payments
   - may be home improvements

Question 4

How must an express declaration of trust be made? How can these be challenged?

Answer 4

1. May be done in the TR1 (purchase deed)
2. if separate doc then
   - in writing and signed (by legal owner(s))
3. Challenging
   - fraud
   - mistake
   - duress
   - undue influence
   - non est factum

Question 5

Trust of Family Home: Proprietary Estoppel

Answer 5

1. Assurance or representation given
   - positively given
   - acquiescence
2. relied to their detriment
   - financial
   - opportunities given up
   - care given
   - working for under market pay

Question 6

Family Home: shares divided if joint tenants

Answer 6

Only if one what’s to claim over 50%, otherwise probs consider severance

1. Different Common Intention to rebut presumption
   - either at purchase or otherwise
2. Evidence
   - courts consider whole course of conduct
   - express agreement best
   - financial factors next best (how other finances split, bills split)

Others
- purpose for which property was bought
- why purchased jointly
- relationship between parties
- children that need home

Question 7

How will court decide on how family home beneficial interest is shared?

Answer 7

• express agreement
• whole course of conduct
• attention given to financial factors