Chapter 8- Owning Property With Someone Else Flashcards
What are the two kinds of trust that a contributor to land may acquire an equitable interest?
Resulting trusts
And
Constructive trusts
What is the collective name for the equitable trusts for a contributor of land
Implied trusts
For a coowner to prove a trust exists what must be evidenced?
Proof of their contribution. If proven a beneficial interest arises.
If they have a beneficial interest already, coownership arises
What is the exception to s53(1) LPA that trusts must be in writing
S53(2) LPA resulting and constructive trusts do not have to be in writing
What is a resulting trust
Where payments are made to the purchase price of the property
What is the case law that supports resulting trusts
Bull v bull 1955
Mother paid for part of the house
When will a resulting trust not arise
When payments are made following the purchase of the property (to mortgage)
How is the value of a beneficial trust established on a resulting trust
By how much is contributed I.e paid 29% price of property. Get 20% price of beneficiaries
Two examples of when constructive trusts arise
An express common intention (evidence to share property ownership)
Inferred common intention (court make ruling on conduct of the parties)
When will express and common intention be awarded
When parties have shown that they acted in reliance in the promise to his detriment (forced to perform obligations in contract)
Which case law supports express common intention
Grant v Edwards
Man put house in his name not to complicate divorce proceedings of woman
Which case law stipulates the harsh rulings of the court on inferred common intentions
House wife contributed to expenses of household for over 25 years but no intention to share property proceeds could be found
Gissing v Gissing
How can a resulting trust evolve into a constructive trust?
With the additional element of common intention
What is common intention?
common intention is where there is an express or implied agreement between unmarried cohabitees as to their beneficial entitlements in the family home.
What does OXley v Hiscock support
Constructive trusts beneficiaries are not bound to their portion of the proceeds by what they’ve put in, but by what is fair in the circumstances.
When does a constructive trust apply?
Only applies when there is no express declaration of trust
Case law example of constructive trust, aside from OXley v Hiscock
Drake v whipp
Claimant gave funds additional to what was signed in trust and judge awarded constructive trust instead of resulting trust
What other 7 factors aside from financial can be used to determine intentions of parties
Nature of parties relationship
Discussions at the time of transfer
Purpose which the home was purchased
Children (beneficiaries)
How finances are arranged
How outgoing expenses were divided
Personalities of the parties
What was the impact of stack v dowden 2007
Commercial and family homes are treated in a different way
Family homes will always be treated as joint tenancy (even if unequal contribution)
Commercial homes will be treated as tenancy in common
What case rebutted stack v dowden and why
Laskar v Laskar
Daughter claimed 50% value for 4% stake under stack v downden. Court held that daughter use property for commercial use and it was rebutted
Which case allows the courts to quantify the share based on Stack v Dowden
Adekunle v Ritchie
Mother son owned property
Son left following argument
Mother died
Son was able to claim 30% based on the intention of the ownership at the time of transfer
Which case explains stack v dowden when parties have lived apart for some time
Jones v Kernott
Implied trust court held 10% went to wife as no intention for 50/50 agreement
Case where overreaching applied in resulting/ constructive trust
Williams & Glynis Bank lrd v Boland
Case where overreaching rebutted in resulting/ constructive trust
City of London building society v Flegg
