Chapter 4: Trusts of Family Home

Question 1

What is an express declaration of trust?

Answer 1

A document setting out who owns what shares in a property

Question 2

Is a declaration of trust conclusive?

Answer 2

A declaration of trust will be conclusive if there is no evidence of fraud or mistake

Question 3

How will equitable interests be held if there is no express declaration of trust?

Answer 3

• Equity follows the law.
• There is a rebuttable presumption that legal and equitable interests will be held equally

Question 4

A declaration of trust is usually conclusive. If a declaration of trust is in the sole name of one party, how may it be avoided?

Answer 4

1. If a party is able to demonstrate fraud, mistake or undue influence.
2. Proprietary estoppel claim which contradicts the declaration of trust

Question 5

What must a claimant demonstrate in order to establish a proprietary estoppel claim?

Answer 5

1. Representation was made or assurance given
2. Claimant relied on representation or assurance
3. Claimant suffered some detriment in reliance on the representation or assurance

Question 6

When will a common intention constructive trust arise?

Answer 6

1. Parties had a common intention that the claimant should have an equitable interest in the property.
2. The claimant relied to his detriment on the common intention

Question 7

When will an express common intention constructive trust arise?

Answer 7

• The claimant must be able to show that there were discussions between the parties
• Common intention must relate to the sharing of land and not merely sharing a life / home together

E.g. Bill tells Jane that he regards home as being hers as well as his despite the fact the home is only registered in his name

Question 8

In which four circumstances may the courts infer common intention?

Answer 8

• A direct contribution to purchase price
• Mortgage payments
• Payment of household expenses specifically to enable legal owner to meet mortgage payments
• Substantial home renovations

Question 9

How will a court quantify a claimant’s equitable interest?

Answer 9

• The court usually gives effect to express agreements
• If there is no express agreement, the court must infer intention of parties through their “whole course of dealing”