Trusts Of The Family Home Flashcards
(28 cards)
On a divorce, will a court make orders in relation to the family home?
Yes only married couples. And not unmarried/cohabiting couples.
When will cohabiting couples experience isues in relation to the family home?
If the home is registered in the sole name of one party or registered in both names but have made different contributions to the purchase price.
If legal title is registered in both names how will the title of the family home be held?
Held as joint tenants
How can the equitable title differ for couples?
Equitable title may be tenants in common.
What is a tenancy in common?
Property owned by 2 or more people jointly with a clear division of shares which are equal or unequal
What is a joint tenancy?
Property owned by 2 or more people jointly without having a clear division of share.
How will joint tenants hold the property and what rights will apply?
They will hold the property equally and the right of survivorship applies.
How will a joint tenancy appear on the registered land?
Appear on the land register
How will joint tenancy appear on unregistered land?
Will appear on the title deed for unregistered land.
Can a joint tenant pass their interest via intestacy or a will?
No, as right of survivorship applies so will be passed automatically to the other tenant.
What essentially is the right of survivorship?
When a joint tenant dies, their interest dies with them.
If it is unclear which joint tenant died first what will be assumed.
The younger will be deemed to have survived the elder.
What is the maximum number of joint tenants
Maximum of 4 legal co-owners are allowed.
How will the equitable title be held if the house is held in both names and there is no express declaration of trust?
Equitable title will be held as joint tenants.
How can the presumption of joint tenancy be rebutted?
Proving the common intention to hold the property as tenants in common
What will prove common intention to hold as tenants in common?
- legal advice or lack of legal advice when purchasing
- discussions aroung the time of purchase as to how it will be held
- purpose of the purchase
- motivation for the joint purpose
- whether any children involved
- how were the parties financed arranged? Eg in diff bank accounts or paid seperately.
How will a court quanitify the shares as tenants in common?
Each persons financial contribution will be considered
Including cashing in life insurance policies and making improvements to the home.
Shares are reflected on the contribution.
What is a declaration of trust
Declaration of trust is a document which the person who holds the asset declares that they hold it on trust in specified shares for themselves or for other parties
What happens if legal title is in the sole name of one party
A sole legal owner, there must be a declaration of an express trust evidenced by signed writing.
For legal title in the sole name of one party, when should the declaration be made?
May be made on the date of the conveyance or at a later date.
For legal title in the sole name of one party, when can the presumption of a trust be avoided?
- Fraud
- Undue influence
- A mistake
For legal title in the sole name, what can override the declaration of trust?
Proprietary estoppel can override the declaration of trust.
For legal title in the sole name of one party, what are the requirments for proprietary estoppel?
- There was an assurance - eg telling someone they will become the owner if they work on the land for 20 years.
- The donee relied on thatd etriment
- Donee suffered a a detriment as they relied on the assurance - eg they did not pursue other careers.
What is a constructive trust?
A trust that arises by the law where it would be UNCONSCIONABLE for a person who holds the asset to deny the beneficial interest of another person in the asset.
