Trusts Of The Family Home

Question 1

On a divorce, will a court make orders in relation to the family home?

Answer 1

Yes only married couples. And not unmarried/cohabiting couples.

Question 2

When will cohabiting couples experience isues in relation to the family home?

Answer 2

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.

Question 3

If legal title is registered in both names how will the title of the family home be held?

Answer 3

Held as joint tenants

Question 4

How can the equitable title differ for couples?

Answer 4

Equitable title may be tenants in common.

Question 5

What is a tenancy in common?

Answer 5

Property owned by 2 or more people jointly with a clear division of shares which are equal or unequal

Question 6

What is a joint tenancy?

Answer 6

Property owned by 2 or more people jointly without having a clear division of share.

Question 7

How will joint tenants hold the property and what rights will apply?

Answer 7

They will hold the property equally and the right of survivorship applies.

Question 8

How will a joint tenancy appear on the registered land?

Answer 8

Appear on the land register

Question 9

How will joint tenancy appear on unregistered land?

Answer 9

Will appear on the title deed for unregistered land.

Question 10

Can a joint tenant pass their interest via intestacy or a will?

Answer 10

No, as right of survivorship applies so will be passed automatically to the other tenant.

Question 11

What essentially is the right of survivorship?

Answer 11

When a joint tenant dies, their interest dies with them.

Question 12

If it is unclear which joint tenant died first what will be assumed.

Answer 12

The younger will be deemed to have survived the elder.

Question 13

What is the maximum number of joint tenants

Answer 13

Maximum of 4 legal co-owners are allowed.

Question 14

How will the equitable title be held if the house is held in both names and there is no express declaration of trust?

Answer 14

Equitable title will be held as joint tenants.

Question 15

How can the presumption of joint tenancy be rebutted?

Answer 15

Proving the common intention to hold the property as tenants in common

Question 16

What will prove common intention to hold as tenants in common?

Answer 16

• 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.

Question 17

How will a court quanitify the shares as tenants in common?

Answer 17

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.

Question 18

What is a declaration of trust

Answer 18

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

Question 19

What happens if legal title is in the sole name of one party

Answer 19

A sole legal owner, there must be a declaration of an express trust evidenced by signed writing.

Question 20

For legal title in the sole name of one party, when should the declaration be made?

Answer 20

May be made on the date of the conveyance or at a later date.

Question 21

For legal title in the sole name of one party, when can the presumption of a trust be avoided?

Answer 21

1. Fraud
2. Undue influence
3. A mistake

Question 22

For legal title in the sole name, what can override the declaration of trust?

Answer 22

Proprietary estoppel can override the declaration of trust.

Question 23

For legal title in the sole name of one party, what are the requirments for proprietary estoppel?

Answer 23

1. There was an assurance - eg telling someone they will become the owner if they work on the land for 20 years.
2. The donee relied on thatd etriment
3. Donee suffered a a detriment as they relied on the assurance - eg they did not pursue other careers.

Question 24

What is a constructive trust?

Answer 24

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.

Question 25

what is a common intention constructive trust?

Answer 25

Where there is a common intention of the parties regarding the sharing of the beneficial interest in a property but the legal title of the property is vested in one party only.

Question 26

What are the requirments for an implied common intention constructive trust?

Answer 26

1. Detrimental reliance and
2. Direct contribution to:
   - purchase price
   - mortagge payments
   - payment of household expenses that then enabled the owner to pay the mortgage payments
   - substancial renovations

Question 27

For common inetntion constructive trusts, if there was no agreement between the parties how will the court determine the quantifying share

Answer 27

No agreement then by the parties intention from their conduct

Question 28

For common intention constructive trusts, how will the court quantify shares if the was any express agreeemnts?

Answer 28

Any express agreements, the court will give effect to any agreement for the qualifying shares.