EXAM NOTES - Implied Trusts of the Home Flashcards
general structure to ITH answers
- property in joint names or one party’s name
- Express declaration of shares?
FOR EACH DATE THAT SOMETHING IMPORTANT HAPPENS:
3.Presumed resulting trust? - Lloyds v Russet – ICICT?
- Lloyd’s v Russet – ECICT?
- Size of share – Stack v Dowden
Preliminaries?
- 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
what’s the general rule if the property is in joint names?
- 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
how can the general rule about joint names be rebutted
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
how can the court decide different shares were intended at the outset in a joint-name property?
eg finances are rigidly separate Stack v Dowden
but unequal payments insufficient to be an indication Folwer v Barron
what if the property is in one person’s name?
Jones v Kernott
- Can C establish an interest in the property?
- What is the size of that interest?
what is the general rule about presumed resulting trusts?
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
what is required to find a PRT?
- C makes a contribution to the cost at the outset eg Bull v Bull; mother helped son buy a house
how do later contributions relate to PRTs
- 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
what is the general rule about joint gifts?
- Midland Bank v Cooke presumption they are shared equally
what is the rule about anticipated future payments and resulting trusts?
- A payment that is anticipated the outset may give rise to an interest under a resulting trust – Tinsley v Milligan.
what are the different kinds of constructive trusts?
Lloyds v Rosset
- inferred common intention constructive trust
- express common intention constructive trust
what is required for an ICICT
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’
What is likely to constitute a direct financial contribution for ICICTs?
- 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
is the test for financial contributions becoming more flexible in ICICTs?
- 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
What does not constitute a financial contribution for ICICTs?
- 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
what is the rule about DIY/renovation work for finding a financial contribution in ICICTs?
- 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
what is required for an ECICT?
Lloyds v Rosset
- agreement towards ownership
- detrimental reliance
what constitutes agreement for the purposes of an ECICT?
- agreement towards ownership eg everything is 50/50 Clough v Killey
- or everything ‘half yours’ Hammond v Mitchell
when must agreement towards ownership exist for ECICTs?
- 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
what does not constitute agreement towards ownership for ECICTs
- 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
how does excuse relate to ECICTs?
- 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
how does the concept of detrimental reliance work for ECICts
- conduct must be such that it is otherwise inexplicable without that party expecting to get a share of the house
what does not count as detrimental reliance?
- 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
does working for the partner’s business count as detrimental reliance
- 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
how is the size of each party’s shares calculated
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%
what factors should be considered for deciding size of share
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
