EXAM NOTES - Implied Trusts of the Home Flashcards

1
Q

general structure to ITH answers

A
  1. property in joint names or one party’s name
  2. Express declaration of shares?
    FOR EACH DATE THAT SOMETHING IMPORTANT HAPPENS:
    3.Presumed resulting trust?
  3. Lloyds v Russet – ICICT?
  4. Lloyd’s v Russet – ECICT?
  5. Size of share – Stack v Dowden
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2
Q

Preliminaries?

A
  • if married: Matrimonial Causes Act 1973
  • if express declaration of trust: Pettitt v Pettitt usually binding but must comply with s53(1)(b) LPA 1925 as declaration of trust in land - signed writing
  • if no express declaration, maybe an ITH requiring no formalities s53(2)
  • equity follows the law Jones v Kernott
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3
Q

what’s the general rule if the property is in joint names?

A
  • both have beneficial interest
  • presume 50-50 split Jones v Kernott, Stack v Dowden because equity follows the law
  • very difficult to rebut Fowler v Barron
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4
Q

how can the general rule about joint names be rebutted

A

1) different shares intended at outset
2) intentions change later
o Consider all factors – Adekunle v Ritchie (purpose was buying a home for the mother so no intention for son to have an equal share)
o If it is clear they either initially or subsequently intended different shares but unclear what, courts decide a fair share Oxley v Hiscock

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5
Q

how can the court decide different shares were intended at the outset in a joint-name property?

A

eg finances are rigidly separate Stack v Dowden

but unequal payments insufficient to be an indication Folwer v Barron

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6
Q

what if the property is in one person’s name?

A

Jones v Kernott

  1. Can C establish an interest in the property?
  2. What is the size of that interest?
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7
Q

what is the general rule about presumed resulting trusts?

A

Stack v Dowden (obiter) and Abbott v Abbott - PRTs are generally inappropriate for family homes
Laskar v Laskar more appropriate for business ventures and investments, but could be applied if there is a commercial element to the family home

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8
Q

what is required to find a PRT?

A
  • C makes a contribution to the cost at the outset eg Bull v Bull; mother helped son buy a house
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9
Q

how do later contributions relate to PRTs

A
  • Cowcher v Cowcher later contributions are usually disregarded
  • if later contributions are anticapated they may or may not suffice
  • – Tinsley v Milligan they suffice
  • – Samad v Thompson don’t suffice
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10
Q

what is the general rule about joint gifts?

A
  • Midland Bank v Cooke presumption they are shared equally
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11
Q

what is the rule about anticipated future payments and resulting trusts?

A
  • A payment that is anticipated the outset may give rise to an interest under a resulting trust – Tinsley v Milligan.
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12
Q

what are the different kinds of constructive trusts?

A

Lloyds v Rosset

  • inferred common intention constructive trust
  • express common intention constructive trust
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13
Q

what is required for an ICICT

A

Lloyds v Rosset

  • inferred common intention constructive trust
  • direct financial contribution by C
  • Morris v Morris inferring ICICT solely on basis of conduct will only happen in ‘exceptional circumstances’
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14
Q

What is likely to constitute a direct financial contribution for ICICTs?

A
  • Lloyds v Rosset - payments for deposit or mortgage, including mortgage payments after purchase
  • Stack v Dowden - renovation work that adds significant value to the property
  • Burns v Burns - paying bills but ONLY if so significant that it enables the partner to pay the mortgage
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15
Q

is the test for financial contributions becoming more flexible in ICICTs?

A
  • Lloyds v Rosset very rigid
  • Stack v Dowden - said Lloyds v Rosset was too rigid
  • Abbott v Abbott whole course of conduct should be considered
  • but James v Thomas - hard, heavy work for a long time did not constitute ‘exceptional’ circumstances and satisfy the requirements for a financial contribution
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16
Q

What does not constitute a financial contribution for ICICTs?

A
  • Burns v Burns giving up work/study to look after children
  • Burns v Burns paying normal bills
  • Gissing v Gissing household expenses
  • James v Thomas working in the family business
  • Lloyd v Rosset children’s expenses
17
Q

what is the rule about DIY/renovation work for finding a financial contribution in ICICTs?

A
  • Pettitt v Pettitt DIY won’t count
  • Thomas v Fuller-Brown substantial renovation unlikely to count
  • Stack v Dowden - renovation work only counts if it adds significant value
18
Q

what is required for an ECICT?

A

Lloyds v Rosset

  • agreement towards ownership
  • detrimental reliance
19
Q

what constitutes agreement for the purposes of an ECICT?

A
  • agreement towards ownership eg everything is 50/50 Clough v Killey
  • or everything ‘half yours’ Hammond v Mitchell
20
Q

when must agreement towards ownership exist for ECICTs?

A
  • Lloyds v Rosset intention must be at time of acquisition or exceptionally at a later date
  • but Clough v Killley and Hammond v Mitchell – allowed later
21
Q

what does not constitute agreement towards ownership for ECICTs

A
  • agreement about shared accomodation or promises as to comfort or quality of life James v Thomas
  • promise that people will be ‘looked after’ Thompson v Humphrey - not about the property
  • promise to ‘share the family home’ not specific enough - no reference to their relative shares Lloyds v Rosset
22
Q

how does excuse relate to ECICTs?

A
  • amounts to acknowledgement that the other party has a beneficial interest
  • Eves v Eves - child too young to go on the deeds
  • Grant v Edwards - it will prejudice your divorce
  • consider from the point of view of a reasonable bystander
23
Q

how does the concept of detrimental reliance work for ECICts

A
  • conduct must be such that it is otherwise inexplicable without that party expecting to get a share of the house
24
Q

what does not count as detrimental reliance?

A
  • giving up work to look after the kids – not detrimental reliance Thomson v Humphrey
  • Supervising workmen – not detrimental reliance Lloyds v Rosset
  • Paying bills/mortgage – could be detrimental reliance if it enables the other party to pay the mortgage Grant v Edwards
  • Renovating the property – Eves v Eves only if of a serious nature
25
Q

does working for the partner’s business count as detrimental reliance

A
  • can do Hammond v Mitchell even if the C is receiving payment, so long as this is less than the market rate
  • but this may be attributed to wanting a better quality of life rather than due to an expectation of acquiring a property interest James v Thomas
26
Q

how is the size of each party’s shares calculated

A

Stack v Dowden – take a holistic approach/the whole course of conduct between the parties
o Applies to ICICT claims Abbott v Abbott and to ECICT claims Holman v Howes
- consider a range of factors
- Webster v Webster non-legal owner unlikely to get as much as 50%

27
Q

what factors should be considered for deciding size of share

A

Stack v Dowden - FONDFP

  • Financial contributions – if joint mortgage in joint names, likely to be 50-50 split unless demonstrable initial or subsequent joint intention differently
  • who pays Outgoings? E.g. insurance/repair costs
  • Nature of their relationship; equivalent to being man and wife? Children together?
  • Discussions between the parties
  • Finances – pooled or separate? Pooled = more likely to be even shares in the house
  • Personalities – very vague; usually a way for the court to punish husbands who run away from wives