6. Trusts of the Family Home

Question 1

Requirements for an express trust to be valid

Answer 1

Evidenced in signed writing
- Or sometimes occurs automatically when partners become registered co-proprietors of the family home

Question 2

If a partner is alleging a CICT which varies their shares (when joint owners), how can they evidence this

Answer 2

1. Evidence of agreement
2. Agreement or common intention supported by detrimental reliance (after a change in circumstances)
3. No clear agreement but evidence if the intention to vary the shares based on the ‘whole course of dealing’ (and detrimental reliance) wherein courts quantify shares

Question 3

Jointly Owned Property and CICT: Factors considered at the quantification phase

Answer 3

1. advice / discussions at the time of purchase
2. Reasons home was in joint names
3. nature of their relationship
4. Children?
5. How purchase was financed at first and after
6. how parties arranged their finances
7. How parties discharged the outgoings on the home / other expenses

Question 4

Two stages of establishing a CICT in sole name cases

Answer 4

1. CICT must be established and
2. beneficial interests are quantified

Question 5

Sole Name: How to establish CICT

Answer 5

1. Common intention that both were to have an interest
2. claimant relied on this intention to their detriment

Question 6

Sole Name: How can a common intention be established?

Answer 6

1. Expressly: by words
2. Impliedly: By conduct
   i. direct contribution to purchase price or
   ii. significant contribution to mortgage payments falling due after the purchase

Question 7

Requirements for Proprietary Estoppel

Answer 7

1. Equity must be established
2. Equity must be satisfied (remedies)

Question 8

How do you establish the equity in proprietary estoppel claims?

Answer 8

1. Show an active or passive assurance
2. Show detriment (spending money, working without enough pay, giving up a job, caring for a sick person)
3. Show reliance
   - Claiming party must have suffered detriment BECAUSE they relied on the assurance, not for other reasons

Question 10

Remedies in Proprietary Estoppel

Answer 10

Court has discretion:
1. transfer of the legal ownership in land
2. grant of a lease
3. some right of occupancy
4. financial compensation
5. a beneficial share in the home

Question 11

Stages of the court’s discretion in PE claims:

Answer 11

1. Establishing the estoppel
2. Court enforces the assurance (ie. the transfer of the legal party)
3. Legal owner must prove that step 2 is out of all proportion to the detriment and court should restrain the remedy
4. If legal owner is still alive, may order transfer regardless
5. Court considers other remedies

Question 12

When may a claimant seeking PE find themselves barred from a remedy?

Answer 12

1. If party has not come to equity with clean hands
2. Unreasonable delay