6. Trusts of the Family Home (CICTs & PropEstop)

Question 1

What is joint ownership?

Answer 1

legal title must be held as ‘joint tenants’ + equitable title may be held as ‘joint tenants’ or ‘tenants in common’

Question 2

What is sole ownership?

Answer 2

One partner owns it but held on trust for them and their partner.

Question 3

What happens in the case of separating couples who are married?

Answer 3

Family courts quantify respective interests.

Question 4

What happens in the case of separating couples who are not married?

Answer 4

Ordinary principles of trusts law apply to quantify interests.

Question 5

What are resulting trusts?

Answer 5

Monetary contributions towards purchase count.

Question 6

How are beneficial interests measured in the absence of an express trust?

Answer 6

Using a common intention constructive trust.

Question 7

What is the court approach for joint owners with no declaration?

Answer 7

Rebut common intention, detrimental reliance, quantify interests.

Question 8

What is the starting point for joint owners with no declaration?

Answer 8

Equitable joint tenants (implied common intention).

Question 9

What must a partner claiming a greater share evidence in joint ownership with no declaration?

Answer 9

Common intention and detrimental reliance.

Question 10

What is required to rebut the common intention in joint ownership with no declaration?

Answer 10

Strong evidence of a different common intention and detrimental reliance.

Question 11

What is considered the best evidence in joint ownership with no declaration?

Answer 11

Financial arrangements and discussions about ownership.

Question 12

What triggers the quantification exercise in joint ownership with no declaration?

Answer 12

Detrimental reliance by one partner.

Question 13

How are parties’ interests quantified in joint ownership with no declaration?

Answer 13

Based on the whole course of dealing and the proportions intended by the parties.

Question 14

What evidence can be used to depart from the presumption of equitable joint tenancy in joint ownership with no declaration?

Answer 14

Evidence of separate finances.

Question 15

Is unequal contribution enough to depart from the presumption of equitable joint tenancy in joint ownership with no declaration?

Answer 15

No.

Question 16

When does the equitable interest likely crystallize in the case of a sole owner with no declaration?

Answer 16

At the time of break up.

Question 17

What happens to the remaining party’s interest in the case of a sole owner with no declaration?

Answer 17

They benefit from subsequent increases in value.

Question 18

What is the court approach for a sole owner with no declaration?

Answer 18

Establish trust/equitable interest, detrimental reliance, quantify.

Question 19

What is the presumption regarding the sole legal owner?

Answer 19

Presumption that they are the sole beneficial owner.

Question 20

What is required for a partner to claim a constructive trust?

Answer 20

Common intention + detrimental reliance.

Question 21

What are the two methods of proving a claim to establish trust?

Answer 21

Express common intention + detrimental reliance, inferred common intention + detrimental reliance.

Question 22

What is required for express common intention + detrimental reliance?

Answer 22

Agreement between partners of entitlement to beneficial interest.

Question 23

What is required for inferred common intention + detrimental reliance?

Answer 23

Direct contribution to purchase price, significant contribution of mortgage payments.

Question 24

Who has the onus of proving detrimental reliance?

Answer 24

The claiming partner.

Question 25

How does the court quantify parties’ interests?

Answer 25

Based on the whole course of dealing and what is considered fair.

Question 26

What is proprietary estoppel?

Answer 26

A legal doctrine that prevents a person from going back on their promise regarding property rights.

Question 27

What is the test for proprietary estoppel?

Answer 27

Assurance made to claimant, claimant relies on the assurance to their detriment, it is unconscionable for the promisor to dishonor the promise.

Question 28

What is required for an assurance to be valid in proprietary estoppel?

Answer 28

It must be clear enough to have been reasonably understood by the claimant.

Question 29

What are some examples of valid assurances in proprietary estoppel?

Answer 29

D saying property will go to C in their will, D saying the property is theirs, C assuming they will get the property and D not correcting them.

Question 30

When will a claim fail in proprietary estoppel?

Answer 30

If there is no qualifying assurance unrelated to the property.

Question 31

What is required for a claiming party to show in terms of detriment?

Answer 31

They must show detrimental reliance upon the assurance made.

Question 32

What are some examples of evidence of detriment in proprietary estoppel?

Answer 32

C spending money on the property, C passing up opportunities.

Question 33

How is the balance of detriment and benefit weighed in proprietary estoppel?

Answer 33

If no detriment is suffered, the claim fails.

Question 34

What is required for a claim to succeed in proprietary estoppel?

Answer 34

There must be a sufficient link between the promisor’s assurance and the claimant’s detrimental conduct.

Question 35

When will a claim fail in proprietary estoppel?

Answer 35

If the claimant acted for reasons other than the promisor’s assurance.

Question 36

What is the aim of remedies for proprietary estoppel?

Answer 36

To avoid unconscionable results.

Question 37

What approach does the court take in determining the remedy?

Answer 37

The remedy should not exceed the claimant’s expectations and must be proportionate to the detriment.

Question 38

What is the 5 step approach adopted by the court?

Answer 38

1. Determine if the denial of assurance is unconscionable. 2. Enforce the promise made. 3. Burden of proof on the defendant to show disproportionate detriment. 4. Transfer of property may be ordered before the defendant’s death. 5. Consider the overall justice and potential injustice to third parties.

Question 39

What are the restrictions to remedies for the claimant?

Answer 39

Inequitable or unconscionable conduct and unreasonable delay in bringing a claim.

Question 40

How does proprietary estoppel differ from CICTs?

Answer 40

Proprietary estoppel asserts an equitable claim against the true owner’s conscience, while CICTs are concerned with identifying true beneficial owners and the size of their interest.