Family home constructive trust Flashcards
Trust of family home - two legal owners. What are the requirements for parties to be tenants in common and what is the effect?
- Must make express declaration stating proportionate shares in which they hold beneficial interest (no special formalities)
- This will always be conclusive (unless fraud or mistake)
Where a couple hold family home’s beneficial interest as joint tenants what is the presumption? What must be shown for this to be rebutted?
- Each parties holds equal undivided shares
Rebutting Presumption
- Claimant must prove that both parties intended not to hold equitable interest as joint tenants
- Either when property was purchased or subsequently
- In some cases the common intention can change over time
- courts will look at whole course of conduct
Where a couple hold family home’s beneficial interest as joint tenants what evidence can be used to rebut the presumption?
- Clear that presumption is not lightly rebutted
- Requires heavy burden and unusual facts
- Court is looking for actual intention of the parties (Jones v Kernott) – so best evidence relates to express agreements or discussions as to beneficial ownership
- In absence of such evidence financial factors of hight importance
Non-Exhaustive List of Factors
- Advice or discussion the parties had which may indicate intention
- Reason legal title was registered in particular names
- Purpose for which the parties acquired the house
- Nature of the relationship
- Whether the parties have children
- How the house was financed
- How the parties arranged other finance and divided responsibility for household expenses
Where a couple hold family home’s beneficial interest as joint tenants and the presumption is rebutted how will the courts go about quantifying shares?
- Takes wholistic approach with focus on actual intention
- As last resort the court will impute an intention of fair shares based on the whole conduct
- In absence of express agreement as to quantification, case law indicates that financial factors will carry the greatest weight
Where family home is in name of sole legal owner what are the requirements to show that beneficial interest is held as tenants in common?
Express Declaration
- Must be evidenced in writing and signed
- Can be made at of after date of conveyance
- Conclusive (unless fraud, mistake of undue influence)
Where family home is in name of sole legal owner what are the requirements to bring a proprietary estoppel claim?
Claimant must demonstrate
- Representation made or assurance given to claimant (either clear or acquiescence meaning C had mistaken belief that D knew about and did not correct);
- Claimant relied on representation or assurance (must be sufficiently linked to representation, which is assumed with assurance); and
- Claimant incurred some detriment as consequence of that reliance (under market service, financial contribution, passing over opportunities).
When is a common intention constructive trust given over a family home held in sole name?
Court prepared to impose constructive trusts if claimant establishes that:
- Parties had common intention (express or inferred) that claimant should have an equitable interest in property; and
- Claimant relied on his detriment on common intention
How can common intention for common intention constructive trust over family home held in sole name be evidenced?
Express
- Statements should be about shared ownership not merely shared occupation
- May be evident by the legal owner providing an excuse as to why partner may not be jointly registered legal owner
Inferred
- Direct contribution to purchase price
- Mortgage payments
- Payments of household expenses made specifically to enable legal owner to make mortgage payments
- Substantial renovations to property by one party
What is the test for detriment for common intention constructive trust over family home held in sole name?
Detrimental Reliance
- conduct would be otherwise be inexplicable
- may be financial contribution (inc. significant payments towards household expenses)
