Family homes

Question 1

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

Answer 1

Allocate ownership fairly between them

Question 2

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

Answer 2

• written evidence satisfying s53(1)(b)
• TR1

Question 3

What form can common intention be?

Answer 3

• express
• inferred

Question 4

What is the starting point for determining beneficial interest?

Answer 4

Equitable title reflects legal title

Question 5

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

Answer 5

1. Rebutting the presumption
2. Quantification

Question 6

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

Answer 6

Shared intention in light of whole course of conduct

Question 7

What is the best evidence to show common intention?

Answer 7

Express agreements/discussions

Question 8

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

Answer 8

Financial factors

Question 9

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

Answer 9

No

Question 10

What was the key concept confirmed in Jones v Kernott?

Answer 10

Common intention can be ambulatory

Question 11

Which stage can imputation of intentions only occur?

Answer 11

Quantification (not rebutting)

Question 12

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

Answer 12

1. Establish an interest
2. Quantification

Question 13

How is an interest established in sole legal owner cases?

Answer 13

• Express common intention + detrimental reliance OR
• Inferred common intention + detrimental reliance

Question 14

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

Answer 14

• shared ownership not shared occupation
• Excuse why not jointly registered

Question 15

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

Answer 15

• performing household duties
• child care
• maintenance jobs

Question 16

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

Answer 16

Making substantial improvements to value of property

Question 17

What will amount to detrimental reliance?

Answer 17

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

Question 18

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

Answer 18

No

Question 19

Will decorating amount to detrimental reliance?

Answer 19

No

Question 20

Will heavy DIY or renovations amount to detrimental reliance?

Answer 20

Yes

Question 21

Will payment of substantial expenses amount to detrimental reliance?

Answer 21

Yes

Question 22

How is the quantification decided?

Answer 22

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

Question 23

What does proprietary estoppel enable?

Answer 23

A person to informally acquire property rights

Question 24

What is the objective of proprietary estoppel?

Answer 24

To prevent unconscionable conduct

Question 25

What does a successful proprietary estoppel claim give rise to?

Answer 25

an 'equity'

Question 26

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

Answer 26

Determine remedy

Question 27

What is an assurance case?

Answer 27

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

Question 28

What are the main elements of a proprietary estoppel claim?

Answer 28

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

Question 29

What must an assurance relate to?

Answer 29

The person has/will acquire a right in the property

Question 30

Does an assurance need to be explicit?

Answer 30

Can be inferred from indirect statements based on context

Question 31

What does reliance mean in a proprietary estoppel case?

Answer 31

'sufficient link’ between assurance and detrimental reliance

Question 32

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

Answer 32

No

Question 33

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

Answer 33

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

Question 34

For proprietary estoppel, how does the court approach detriment?

Answer 34

Whether repudiation of assurance would be unconscionable in context

Question 35

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

Answer 35

No can be significant choices concerning claimant and their family

Question 36

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

Answer 36

Yes

Question 37

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

Answer 37

no

Question 38

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

Answer 38

Shock the conscience of the court