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Trusts > Family homes > Flashcards

Family homes Flashcards

1
Q

What does the court have the power to do on dissolution/divorce?

A

Allocate ownership fairly between them

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2
Q

How may there be an express trust confirming the beneficial ownership?

A
  • written evidence satisfying s53(1)(b)
  • TR1
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3
Q

What form can common intention be?

A
  • express
  • inferred
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4
Q

What is the starting point for determining beneficial interest?

A

Equitable title reflects legal title

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5
Q

What is the two step process in joint legal ownership cases?

A
  1. Rebutting the presumption
  2. Quantification
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6
Q

How is the presumption that there is a joint tenancy rebutted?

A

Shared intention in light of whole course of conduct

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7
Q

What is the best evidence to show common intention?

A

Express agreements/discussions

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8
Q

What factors will be important in establishing common intention in the absence of express agreements?

A

Financial factors

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9
Q

Are unequal financial contributions alone enough to rebut the presumption of a joint tenancy?

A

No

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10
Q

What was the key concept confirmed in Jones v Kernott?

A

Common intention can be ambulatory

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11
Q

Which stage can imputation of intentions only occur?

A

Quantification (not rebutting)

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12
Q

What is the two step process in sole legal ownership cases?

A
  1. Establish an interest
  2. Quantification
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13
Q

How is an interest established in sole legal owner cases?

A
  • Express common intention + detrimental reliance OR
  • Inferred common intention + detrimental reliance
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14
Q

For sole legal ownership, what should express discussions be about to show a common intention?

A
  • shared ownership not shared occupation
  • Excuse why not jointly registered
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15
Q

What factors were deemed irrelevant in creating an interest for sole legal owner cases?

A
  • performing household duties
  • child care
  • maintenance jobs
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16
Q

What may be a factor where common intention can be inferred for single owner cases?

A

Making substantial improvements to value of property

17
Q

What will amount to detrimental reliance?

A

Conduct which is ‘otherwise inexplicable’ or
‘conduct relating to the joint lives of parties’

18
Q

Will giving up a job or becoming a traditional wife amount to detrimental reliance?

A

No

19
Q

Will decorating amount to detrimental reliance?

A

No

20
Q

Will heavy DIY or renovations amount to detrimental reliance?

A

Yes

21
Q

Will payment of substantial expenses amount to detrimental reliance?

A

Yes

22
Q

How is the quantification decided?

A
  • express intention = give effect
  • otherwise court infers common intention
  • otherwise court imputes intention for fair share based on whole course of dealing
23
Q

What does proprietary estoppel enable?

A

A person to informally acquire property rights

24
Q

What is the objective of proprietary estoppel?

A

To prevent unconscionable conduct

25
Q

What does a successful proprietary estoppel claim give rise to?

A

an ‘equity’

26
Q

What is the court’s role upon a successful properietary estoppel claim?

A

Determine remedy

27
Q

What is an assurance case?

A

B assures A they will/have a right in property and A acts to their detriment

28
Q

What are the main elements of a proprietary estoppel claim?

A
  1. assurance
  2. reliance
  3. detriment
    Unconscionable for defendant to resily from assurance
29
Q

What must an assurance relate to?

A

The person has/will acquire a right in the property

30
Q

Does an assurance need to be explicit?

A

Can be inferred from indirect statements based on context

31
Q

What does reliance mean in a proprietary estoppel case?

A

‘sufficient link’ between assurance and detrimental reliance

32
Q

Does reliance have to be the sole cause of detrimental reliance in proprietary estoppel?

A

No

33
Q

What is the consequence of a claimant receiving an assurance and acting to their detriment?

A

Presumption that they relied on assurance
Burden of proof transfers to defendant to prove no reliance

34
Q

For proprietary estoppel, how does the court approach detriment?

A

Whether repudiation of assurance would be unconscionable in context

35
Q

For proprietary estoppel, is detriment limited to expenditure and providing services?

A

No can be significant choices concerning claimant and their family

36
Q

Will a claim for proprietary estoppel with proven assurance, reliance and detriment fail if there is no unconscionability?

A

Yes

37
Q

Is it likely that absence of unconscionability will cause a claim for proprietary estoppel to fail?

A

no

38
Q

What must D’s behaviour be to be considered unconscionable?

A

Shock the conscience of the court

Trusts (15 decks)

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