Chapter 8- Owning Property With Someone Else

Question 1

What are the two kinds of trust that a contributor to land may acquire an equitable interest?

Answer 1

Resulting trusts

And

Constructive trusts

Question 2

What is the collective name for the equitable trusts for a contributor of land

Answer 2

Implied trusts

Question 3

For a coowner to prove a trust exists what must be evidenced?

Answer 3

Proof of their contribution. If proven a beneficial interest arises.

If they have a beneficial interest already, coownership arises

Question 4

What is the exception to s53(1) LPA that trusts must be in writing

Answer 4

S53(2) LPA resulting and constructive trusts do not have to be in writing

Question 5

What is a resulting trust

Answer 5

Where payments are made to the purchase price of the property

Question 6

What is the case law that supports resulting trusts

Answer 6

Bull v bull 1955

Mother paid for part of the house

Question 7

When will a resulting trust not arise

Answer 7

When payments are made following the purchase of the property (to mortgage)

Question 8

How is the value of a beneficial trust established on a resulting trust

Answer 8

By how much is contributed I.e paid 29% price of property. Get 20% price of beneficiaries

Question 9

Two examples of when constructive trusts arise

Answer 9

An express common intention (evidence to share property ownership)

Inferred common intention (court make ruling on conduct of the parties)

Question 10

When will express and common intention be awarded

Answer 10

When parties have shown that they acted in reliance in the promise to his detriment (forced to perform obligations in contract)

Question 11

Which case law supports express common intention

Answer 11

Grant v Edwards

Man put house in his name not to complicate divorce proceedings of woman

Question 12

Which case law stipulates the harsh rulings of the court on inferred common intentions

Answer 12

House wife contributed to expenses of household for over 25 years but no intention to share property proceeds could be found

Gissing v Gissing

Question 13

How can a resulting trust evolve into a constructive trust?

Answer 13

With the additional element of common intention

Question 14

What is common intention?

Answer 14

common intention is where there is an express or implied agreement between unmarried cohabitees as to their beneficial entitlements in the family home.

Question 15

What does OXley v Hiscock support

Answer 15

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.

Question 16

When does a constructive trust apply?

Answer 16

Only applies when there is no express declaration of trust

Question 17

Case law example of constructive trust, aside from OXley v Hiscock

Answer 17

Drake v whipp

Claimant gave funds additional to what was signed in trust and judge awarded constructive trust instead of resulting trust

Question 18

What other 7 factors aside from financial can be used to determine intentions of parties

Answer 18

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

Question 19

What was the impact of stack v dowden 2007

Answer 19

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

Question 20

What case rebutted stack v dowden and why

Answer 20

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

Question 21

Which case allows the courts to quantify the share based on Stack v Dowden

Answer 21

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

Question 22

Which case explains stack v dowden when parties have lived apart for some time

Answer 22

Jones v Kernott

Implied trust court held 10% went to wife as no intention for 50/50 agreement

Question 23

Case where overreaching applied in resulting/ constructive trust

Answer 23

Williams & Glynis Bank lrd v Boland

Question 24

Case where overreaching rebutted in resulting/ constructive trust

Answer 24

City of London building society v Flegg