Family homes

Question 1

The family home: the issue

Answer 1

• For many couples, the family home will be the most significant asset that they own.
• Disputes as to ownership of the home are likely to arise in two broad circumstances:
  (1) When the relationship breaks down
  (2) When one of them dies and their estate is being administered
• On divorce or dissolution of a civil partnership, the court has discretion under the Matrimonial Causes Act 1973 or Civil Partnership Act 2004 to allocate ownership fairly between the parties.
• There are no equivalent statutory provisions applicable to the breakdown of a relationship between cohabitees.
• The statutory provisions also do not apply if a claim is made by a third party, such as a mortgagee or someone entitled to inherit the estate of one of the cohabitees.

Question 2

Who owns the property?

Answer 2

• Legal ownership: At law, the owner of the property is whoever holds legal title to it. For registered land this means the person registered as legal owner at the Land Registry.
• Sole owners: If the property is registered in the sole name of one party then at law, the property will belong to that party.
• Joint owners: If the property is registered in joint names the couple will own the property as legal joint tenants.

Question 3

Disputes over ownership

Answer 3

Disputes over the home arise if the legal title is not representative of the beneficial ownership of the property. Disputes tend to arise in two circumstances:

(1) Sole owner: Where legal title to the property is registered in the name of one party only, but the other claims a beneficial interest in the property
(2) Joint owners: Where legal title to the property is registered in the name of both parties, but there is no declaration as to their beneficial interest, and it is claimed that the parties are not beneficial joint tenants.
- In these circumstances, trusts will determine the beneficial ownership of the home.

Question 4

Legal and equitable co-ownership

Answer 4

Legal title to land can only be held as either:
(a) Sole legal owner
(b) Joint tenants
The legal owner(s) may hold that legal title in one of the following ways:
(a) As full legal and beneficial owner (no separation of title)
(b) On trust for a sole beneficiary
(c) On trust for more than one beneficiary as joint tenants
(d) On trust for more than one beneficiary as tenants in common in equal shares
(e) On trust for more than one beneficiary as tenants in common in unequal shares

Question 5

Is there an express trust?

Answer 5

• If there is written evidence of an express trust which satisfies s 53(1)(b) LPA 1925 this will determine the beneficial interests in the property (Pettitt v Pettitt)
• The Land Registry TR1 form (which is needed to transfer legal title to land) includes provision for specifying equitable ownership. Completing this satisfies s 53(1)(b) LPA 1925.
• The problem is that this section of the form is not compulsory and many people do not complete it. It is therefore presumed that the beneficial ownership of the land mirrors the legal ownership (Stack v Dowden)

Question 6

Common intention constructive trusts

Answer 6

• Although purchase money resulting trusts were previously used in these situations (meaning the beneficial ownership reflected the couple’s respective contributions to the purchase price) it has been made extremely clear that they have no place to play in determining the beneficial ownership of family homes (Jones v Kernott)
• Common intention constructive trusts provide a more flexible mechanism for determining beneficial ownership, allowing the court to take into account a wider range of factors than simple monetary contributions.
• Instead of looking only to financial contributions to the purchase of a property, common intention constructive trusts reflect the common intention of the parties.
• Such intention can be either:
  (a) Express: (i.e. based on express statements as to ownership); or
  (b) Inferred (i.e. determined objectively based on the circumstances).

Question 7

Stack v Dowden

Answer 7

A highly significant case for two reasons:

(1) It involved land which was held by joint legal owners
(2) The House of Lords indicated that a holistic approach should be adopted when determining legal ownership
- The starting point is that equitable title reflects legal title. In other words: a sole legal owner is the sole beneficial owner, or joint legal owners are presumed to be equitable joint tenants.
- In sole legal ownership cases, an individual seeking to establish a beneficial interest will need to establish that they have acquired an interest under a common intention constructive trust. This requires proof of (i) a common intention that they should have a beneficial interest and (ii) detrimental reliance upon that intention.
- In joint legal ownership cases, an individual seeking to establish that they are not beneficial joint tenants will need to rebut the presumption with reference to the common intention of the parties. There is no need to show detrimental reliance.

Question 8

Establishing common intention

Answer 8

• In both cases the court is seeking to establish the actual intention of the parties, whether express or inferred, based on the ‘whole course of conduct’.
• Intention can be ambulatory, meaning a beneficial interest can be established, or the presumption of joint tenancy rebutted, after acquisition (if circumstances change).
• Once common intention (and, in sole ownership cases detrimental reliance) has been established, it is necessary to quantify the interests of the parties. Again, this involves taking into account ‘the whole course of conduct’ in order to reach a conclusion as to the appropriate shares.
• If an express intention as to quantification can be established, the court will give effect to that intention.
• If an express intention cannot be established, the court will attempt to infer an intention based on the conduct of the parties.
• As a last resort, if it is not possible to ascertain the actual intention of the parties as to quantification of their shares, the court will impute an intention for ‘fair shares’ based on all the ‘whole course of conduct’.

Question 9

Joint legal ownership: The presumption

Answer 9

In Stack v Dowden Lady Hale stated that the starting point in all family homes cases is that “equity follows the law”.

Question 10

Joint legal ownership: Two step process

Answer 10

Step 1: Rebutting the presumption
Did the parties have a common intention to hold the property other than as joint tenants?

Step 2: Quantification
If the parties are not joint tenants, they must be tenants in common. But in what proportions?

Question 11

Joint legal ownership: Step 1: Rebutting the presumption

Answer 11

There are two scenarios to consider:

(a) The person seeking to rebut the presumption may simply argue for a beneficial tenancy in common in equal shares. (most likely in cases involving a dispute about beneficial ownership of the land after the death of one of the legal owners - if the property was held as joint tenants, it will pass to the other owner(s) by survivorship. For a share of the property to pass to the deceased person’s estate, it is necessary to demonstrate that they were tenants in common)
(b) More often, the person seeking to rebut the presumption will be seeking to argue that the parties are beneficial tenants in common in unequal shares. This will often be the case where the couple have separated and are disputing their respective entitlements.

Question 12

Joint legal ownership: “Whole course of conduct”

Answer 12

A non-exhaustive list of factors that may be taken into account:

(a) Advice or discussions the parties had which may indicate their intention
(b) The reason legal title was registered in particular names
(c) The purpose for which the parties acquired the house
(d) The nature of the relationship
(e) Whether the parties have children
(f) How the house was financed
(g) How the parties arranged other finances and divided responsibility for household expenses

Question 13

Applying the Stack factors

Answer 13

• Lady Hale made clear in Stack that the presumption will not be rebutted lightly in cases of joint legal ownership. It is for the party seeking to rebut the presumption to adduce the relevant evidence, which is a “heavy burden” requiring“unusual facts”.
• The court is looking for the actual intention of the parties. The best evidence of that intention will therefore be evidence relating to express agreements or discussions as to beneficial ownership.
• In the absence of any such express discussions, it seems clear from Stack itself that financial factors are of particular importance to this exercise.

Question 14

Step 2: Quantification

Answer 14

• Once common intention has been established, it is necessary to quantify the interests of the parties. Again, this involves taking into account ‘the whole course of conduct’.
• the primary search is for the actual intention of the parties
• However, as a last resort, the court will impute an intention for ‘fair shares’ based on the ‘whole course of conduct’.
• The same factors are taken into account at this stage of the process. Clearly, an express agreement or discussion as to the parties’ respective shares is the best evidence of what they intended. If there is such evidence, this is how the shares will be quantified.
• In the absence of an express agreement as to quantification, the case law again indicates that financial factors will carry the greatest weight.

Question 15

Stack v Dowden: The facts

Answer 15

• The House of Lords awarded Ms Dowden a 65% share and Mr Stack a 35% share in a home that they owned as legal joint tenants.
• The couple were in a relationship for 27 years and raised four children together. Whilst they purchased their shared home in joint names and both contributed (albeit unequally) to the deposit and mortgage, they otherwise kept their finances rigidly separate.
• Throughout their relationship they kept separate bank accounts and made separate savings and investment transactions. They maintained financial independence.
• This was held to be indicative that they did not intend a beneficial joint tenancy or to have equal shares in the house.

Question 16

Post-Stack case law

Answer 16

• Fowler v Barron demonstrates that unequal financial contributions alone are not enough. Further evidence is required
• In Fowler itself, the Court of Appeal held that a man who had paid the deposit, all mortgage payments and all direct outgoings was unable to rebut the presumption of joint beneficial ownership.
• In Adekunle v Ritchie, a mother and her youngest son (who lived with her) bought a house in joint names. In order to purchase the house, it was necessary to have the mortgage in their joint names as the mother was unemployed and could therefore not obtain a mortgage alone.
• The presumption was rebutted on the basis that the primary purpose of the acquisition was as a home for the mother, even though the son also lived there and contributed to the mortgage. There was no intention that they should be beneficial joint tenants, especially when the woman would have wanted all her sons to benefit on her death from her only significant asset. If they were joint tenants, the house would pass only to the youngest son by survivorship.

Question 17

Jones v Kernott: Rebutting the presumption

Answer 17

• It may be concluded that the parties had a common intention to hold the property as joint tenants when it was first acquired but that intention changed at a later date (such as following the end of the relationship). At that date, their interests in the property ‘crystallise’ and subsequent events (e.g. capital growth of the land) are considered when quantifying their respective interests.
• Ms Jones and Mr Kernott purchased a property in joint names. The deposit was paid from the sale of Ms Jones’ previous home in her sole name with the balanced raised by a mortgage in their joint name. From 1985-1993 they jointly contributed to household expenses and took out a joint loan to build an extension (with Mr Kernott doing some work on the extension).
• The couple separated in 1993 and cashed in a joint life assurance policy which they divided equally. Mr Kernott used his 50% share to buy a new home in 1996 and Ms Jones used her share to pay the mortgage on the property, which she lived in for fourteen and a half years, paying all expenses herself. Mr Kernott made no further contributions.
• The majority were willing to infer that the couple had intended Mr Kernott’s interest to crystallise when he moved out.

Question 18

Jones v Kernott - Imputation

Answer 18

• Given the increase in value of the property since the relationship broke down, along with her sole contributions to the mortgage since his departure 14 years previously, she received 90% of the house and he received a 10% share.
• stressed that, even at this stage, the primary aim should be to infer the intention of the parties based on the whole course of conduct and Lady Hale’s non-exhaustive list of factors.
• However, they accepted that as a ‘fallback’ position, the court may be required to impute an intention to the parties based on “what their intentions as reasonable and just people would have been had they thought about it at the time”.

Question 19

When can imputation be used?

Answer 19

Imputation can only occur at the quantification stage, but not when rebutting the presumption of joint tenancy (Barnes v Phillips)

Question 20

Sole legal ownership: The starting point

Answer 20

In Stack v Dowden Lady Hale stated that the starting point in all family homes cases is that “equity follows the law”.

Question 21

Sole legal ownership: Two step process

Answer 21

Step 1: Establishing an interest
- Did the parties have a common intention for the non-legal owner to acquire a beneficial interest? Has that person relied on this to their detriment?
Step 2: Quantification
- If the non-legal owner can establish an interest, what is the quantum of that interest as a proportion of the property?

Question 22

Sole legal ownership: Step 1: Establishing an interest

Answer 22

(1) Evidence of an express common intention as to the shared ownership of the property, followed by detrimental reliance by the non-legal owner. Once an express common intention was established, a relatively wide range of conduct would satisfy the requirement of detrimental reliance.
(2) In the absence of an express common intention, the court could also infer common intention from the parties’ conduct, again followed by detrimental reliance. In such cases, detrimental reliance would typically be inferred from the same conduct as the common intention. In Stack, Lady Hale indicated that the court should not take such a restrictive approach and should consider the ‘whole course of conduct’, taking into account the Stack factors.

Question 23

Sole legal ownership: Express common intention

Answer 23

(a) When assessing common intention, statements should be about shared ownership not merely about shared occupation.
(b) Common intention to share ownership may be evidenced by the legal owner providing an excuse as to why their partner may not be jointly registered as the legal owner.

Question 24

Discussions: Ownership v occupation

Answer 24

Words indicating ownership:

• “half yours” (Hammond v Mitchell)
• “50:50” (Clough v Killey)

Insufficient for ownership:

• “Family home” (Lloyds Bank v Rosset)
• “benefit…both of us” (James v Thomas)
• “You will be looked after” (Thomson v Humphrey)

Question 25

Sole legal ownership: Excuses

Answer 25

• common intention may also be evidenced by the legal owner providing an excuse as to why their partner may not be jointly registered as legal owner.
• “you’re too young” (Eves v Eves)
• “…it’s your divorce” (Grant v Edwards: it was suggested that sharing legal ownership would prejudice the partner’s divorce.)
• However, recent case law suggests that inferences should not be drawn too readily from an excuse.
• Curran v Collins: a common intention to share the beneficial ownership could not be inferred where the legal owner had made an excuse in order to avoid having an argument, rather than to prevent their partner obtaining an intended interest in the shared home.

Question 26

Sole legal ownership: Inferred common intention

Answer 26

Oxley v Hiscock: the court suggested that the court could determine shares of the property based on what it considered fair in light of the parties’ “whole course of dealing” in relation to the property.

• the “law has moved on” from a focus on financial contributions.
• application of the Stack holistic approach

Question 27

Sole legal ownership: Application of the holistic approach

Answer 27

• Thomson v Humphrey: court declined to infer common intention as a result of an individual caring for family
• Walsh v Singh: court declined to infer common intention as a result of a woman giving up her career
• Morris v Morris: court declined to infer common intention where a woman worked without pay.
• Graham-York v York: a woman lived in an abusive and controlling relationship with her partner. The judge held that during the 33 years she lived with him her financial contributions to the household did ‘not amount to much’ although she did cook all the family meals and cared for their daughter. Inferred common intention was found and she was awarded a 25% share in the property.
• James v Thomas: a woman had made very substantial improvements to the property (including heavy labour) and gave up her job to work for the man’s business, thereby making it easier for him to make mortgage payments (which came from their joint account). Despite this, common intention was not inferred.
• Both Lord Walker and Lady Hale suggested in obiter in Stack that making substantial improvements which significantly added value to the property would be capable of creating an interest.
• Aspden v Elvy: Common intention was inferred by a man’s substantial contributions in work and money (around £65,000-£70,000) in converting a barn which substantially increased the land’s value.

Question 28

Sole legal ownership: The meaning of detrimental reliance

Answer 28

• Grant v Edwards: conduct which the [claimant] could not reasonably have been expected to embark unless [s]he was to have an interest in the house”.
• ## “any act done by her to her detriment relating to the joint lives of the parties is….sufficient”.

Question 29

Sole legal ownership: Step 2: Quantification

Answer 29

(a) If there is evidence of express common intention as to the shares this ought to be conclusive
(b) In the absence of such an intention, the same approach is taken as in joint ownership cases; the court ought to strive to infer the common intention
(c) If this is not possible they may impute an intention for ‘fair shares’ in light of the ‘whole course of dealing’
- imputation is only permissible at quantification stage.

Question 30

Considerations with imputation

Answer 30

• In Aspden v Elvy the High Court considered the contributions of both money and physical labour by Mr Aspden and imputed that he should have a 25% share of the home.
• Graham-York v York: a dysfunctional relationship and Mr York was both controlling and violent. The Court of Appeal rejected Miss Graham-York’s argument that her interest should have been quantified at 50%, upholding the trial judge’s allocation of a 25% share. Held that it is not the role of the court to reallocate property rights based on other matters (such as the presence of domestic violence in the relationship), which have no link to the acquisition of the property.

Question 31

Proprietary estoppel

Answer 31

• an equitable doctrine which enables a person to informally acquire property (or personal) rights. Its objective is to prevent unconscionable conduct.
• a cause of action: it is the basis of a claim. It is not limited to the status of a defence.
• the court determines what remedy is appropriate. The court enjoys a broad discretion in selecting the remedy.

Question 32

Situations in which proprietary estoppel claims are often encountered

Answer 32

(1) A mistakenly believes that they have a right in land which is owned by B and, in reliance on that belief, act to their detriment in circumstances where B is aware of their mistake but does not attempt to correct it or prevent them acting to their detriment. This situation is commonly described as an ‘acquiescence’ case
(2) B assures A that they have or will acquire a right in relation to B’s property and, in reliance on that assurance, B acts to their detriment. This situation is commonly described as an ‘assurance’ case.

Question 33

Proprietary estoppel: Pascoe v Turner

Answer 33

FACTS: The claimant and the defendant started living together as man and wife in 1964. They lived in the claimant’s house. In 1973, their relationship broke down. The claimant, who was having an affair with another woman, moved out of the house. He told the defendant: ‘The house is yours.’ He repeated this statement many times. In reliance on this statement, the defendant made various repairs and improvements to the house.
HELD: The claimant had made an assurance to the defendant that the house was hers and the defendant acted to her detriment in reliance on that assurance. Accordingly, the defendant had established an equity by way of proprietary estoppel. The most appropriate way to satisfy the equity was to order the claimant to transfer the house to the defendant.

Question 34

Proprietary estoppel: Greasley v Cooke

Answer 34

FACTS: In 1938, the defendant moved into the house of a widower to work as a maid. In 1946, the defendant and Kenneth started to live together as man and wife. The widower died in 1948. The defendant was not paid any wages after his death. She did not seek alternative employment because Kenneth and his brother (the widower’s children) assured her that she could live in the house for the rest of her life. In reliance on this assurance, the defendant continued to look after the family who lived in the house until Kenneth’s death in 1975. In particular, she cared for Kenneth’s mentally ill sister, which was a ‘hard and unpleasant task’.
HELD: Since the defendant had looked after the family for 27 years for no pay and on the faith of the assurances which Kenneth and his brother had made to her, she had established an equity by way of proprietary estoppel. The equity was satisfied by giving her a licence to occupy the house rent-free for the rest of her life.

Question 35

Elements of a proprietary estoppel claim

Answer 35

Thorner v Major:

(1) An assurance made to the claimant.
(2) Reliance by the claimant on the assurance.
(3) Detriment to the claimant in consequence of their reliance.
- as proprietary estoppel is based on ‘the fundamental principle that is equity is concerned to prevent unconscionable conduct,’ the claimant must also demonstrate that it would be unconscionable for the defendant to resile from the assurance.

Question 36

Proprietary estoppel - (1) Assurance

Answer 36

• The assurance must be an assurance (a promise) that the claimant has or will acquire a right in property owned by the defendant.
• Thus, an assurance by the defendant that they will grant the claimant an easement over their land is a qualifying assurance. But an assurance by the defendant that the claimant will always be financially secure is not.

Question 37

Proprietary estoppel - (1) Assurance: Thorner v Major

Answer 37

FACTS: The claimant, David, worked on his cousin’s, Peter’s, farm for almost 30 years without payment. Peter and David were part of a community of farmers who were ‘taciturn and undemonstrative men’ and who communicated obliquely and allusively. On Peter’s death, David brought a proprietary estoppel claim, alleging that Peter had made an assurance that he would give David the farm by his will. The principal issue was whether David could establish the alleged assurance given that Peter had never explicitly said that he would give the farm to David.
David relied on two principle features to establish assurance:
(1) In 1990 Peter gave David documents relating to two assurance policies on Peter’s life. He said to David: ‘That’s for my death duties.’
(2) On various occasions, Peter mentioned features of the farm which were only relevant to a person who was to have a continuing involvement with the farm .
HELD: in light of the context, the features relied on by David amounted to an assurance by Peter that he would give the farm to David by his will. David’s claim was successful and he was awarded the farm.

Question 38

Proprietary estoppel - (1) Assurance: Key principles from Thorner v Major

Answer 38

(a) The assurance need not be explicit. It can be inferred from indirect statements.
(b) The relevant assurance must be ‘clear enough’ and whether it is clear enough ‘is hugely dependent on context.’
(c) The task of the court is to ascertain how the defendant’s words would have been reasonably understood by the claimant in the context in which they were spoken.
- what matters was that what Peter said was clear enough for David to form a reasonable view that Peter was giving him an assurance that he was to inherit the farm and he could rely on it.

Question 39

Proprietary estoppel - (2) Reliance

Answer 39

• there must be ‘a sufficient link’ between the defendant’s assurance and the claimant’s detrimental conduct: Wayling v Jones
• This is effectively a causation requirement: Campbell v Griffin. The assurance does not have to be the sole cause of the claimant’s detrimental conduct. It is sufficient if it is a cause of that conduct.

Question 40

Proprietary estoppel - (2) Reliance contrasting cases

Answer 40

Taylors Fashions Ltd v Liverpool Victoria Trustees: The claimant argued that the installation of a lift in retail premises was an act of detrimental reliance. Oliver J rejected the argument (and the proprietary estoppel claim) on the basis that the claimant would have installed the lift anyway.

Wayling v Jones: The claimant’s boyfriend (D) owned a hotel. D asked the claimant, a trained chef, to help him run the hotel. And D assured the claimant that he would give him the hotel by his will. The claimant worked very hard for four years making a success of the hotel. He was paid ‘little more than pocket money.’ The claimant stated that he would have worked in the hotel even if D had not made the assurance because D needed him and because he loved D.
- Held that, since D had made the assurance, the only relevant question was what the claimant would have done if D had told him that he had changed his mind. During his evidence in chief, this question had been put to the claimant, who answered that he would have left D and stopped working in the hotel. On the strength of this answer, the court held that the claimant had relied on D’s assurance.

Question 41

Reliance: burden of proof

Answer 41

• If the defendant makes an assurance to the claimant and the claimant acts in a manner which is detrimental, it is presumed that the claimant relied on the assurance: Greasley; Wayling.
• Where the presumption applies, the defendant must prove that the claimant did not rely on the assurance.

Question 42

Proprietary estoppel - (3) Detriment

Answer 42

• the court must determine whether conduct is detrimental on the assumption that the defendant will dishonour the assurance.
• The most obvious examples of detriment are expenditure and the provision of services without payment or for less than their market value
• in Gillett the court held that the claimant had acted to his detriment by subordinating himself to the defendant and allowing the defendant to make significant choices concerning the claimant and his family such as, for example, where and how the claimant’s children should be educated.
• A claimant also acts to their detriment if they pass up opportunities to better themselves or to live a better life, eg by choosing to not pursue educational, employment or business opportunities: Gillett; Henry v Henry
• Southwell: claimant had acted to her detriment by (amongst other things) giving up a secure rented home which she had spent some £15,000 to £20,000 fitting out and furnishing.

Question 43

Proprietary estoppel - Unconscionability

Answer 43

• Even in cases where the claimant establishes assurance, reliance and detriment, their claim will not succeed if the court considers that it would not be unconscionable for the defendant to dishonour the assurance
• This involves an ‘objective value judgment’ of the defendant’s behaviour by the court.
• The claim will only succeed if the defendant’s behaviour ‘shock[s] the conscience of the court.’
• in nearly all the reported cases the presence of assurance, reliance and detriment has been sufficient to establish that it was unconscionable. Vary few cases fail on this requirement.

Question 44

Sledmore v Dalby: a claim that did fail for lack of unconscionability

Answer 44

• A and B (the claimant) were a married couple. They had an adult daughter, C, who was married to D (the defendant). A and B allowed C and D to live in a cottage which was owned by them. In 1976, A and B assured C and D that they would give them the cottage. In reliance on this assurance, D made various structural and decorative improvements to the cottage.
• A died in 1980 and C died in 1983. D continued to live in the cottage rent free after C’s death. In 1991, B asked D to vacate the cottage, but D refused to do so. B initiated proceedings to recover possession of the cottage. D defended the proceedings, arguing that he had acquired an equity by way of proprietary estoppel.
• it was not unconscionable for B to dishonour the assurance and recover possession of the cottage.
• due to the following factors:
  (a) D had enjoyed the benefit of rent-free accommodation for more than 15 years.
  (b) D had enjoyed the benefit of his expenditure on the cottage (by living there for many years).
  (c) D was making minimal use of the cottage. He lived with his new partner. He only slept at the cottage
  (d) D was employed and was able to pay for his own accommodation.
  (e) B was impecunious and was in receipt of state benefits.
  (f) B had only sought to recover possession of the cottage from D because she was desperate.

Question 45

Proprietary estoppel - Remedy

Answer 45

• Where a claimant establishes a proprietary estoppel it generates an ‘equity’. The court must ‘satisfy’ the equity by fashioning an appropriate remedy. The overriding objective is to award a remedy that avoids an unconscionable result.
• In fashioning the remedy, the court must have regard to all the circumstances

Question 46

Proprietary estoppel - Possible remedy examples

Answer 46

(a) transfer ownership of property to the claimant
(b) hold property on trust for the claimant
(c) grant the claimant a property right over their property (eg an easement)
(d) grant the claimant a personal right over their property (eg a licence)
(e) pay a sum of money to the claimant.

Question 47

Proprietary estoppel - Three principles which regulate the exercise of the court’s remedial discretion

Answer 47

Jennings:

(1) The remedy should not exceed the claimant’s expectation. (In this case, R had only assured the claimant that she would give him the house and its furniture, that was the maximum extent of any potential remedy. Thus, the judge was correct to reject the claimant’s argument that he was entitled to the whole of R’s estate.)
(2) The court may award a remedy which satisfies the claimant’s expectations, but it is not required to do so (In this case, the judge rejected the claimant’s argument that he was entitled to the house and its furniture.)
(3) The remedy must be proportionate to the claimant’s detriment; and ‘the court must also do justice to the defendant.’ (In this case, the judge did not give the house and its furniture because such a remedy would have been disproportionate to the claimant’s detriment – visiting and caring for R)

Question 48

Pascoe - elements considered by the court in the exercise of its remedial discretion for proprietary estoppel

Answer 48

• the court was of the view that the defendant’s equity could be satisfied in two ways: by giving her a licence to occupy the house for the rest of her life or by giving the house to her. The court choose the latter option, due to the following factors:
  (a) The claimant was rich compared to the defendant and the defendant had spent approximately 70% of her savings repairing, improving and furnishing the house.
  (b) The claimant had demonstrated a ‘ruthless’ streak in his efforts to exclude the defendant from the house.

Question 49

Proprietary estoppel and constructive trusts

Answer 49

Stack v Dowden
the principal conceptual distinction between proprietary estoppel and common intention constructive trusts:
“Proprietary estoppel typically consists of asserting an equitable claim against the conscience of the “true” owner. The claim is a “mere equity.” It is to be satisfied by the minimum award necessary to do justice…A “common intention” constructive trust, by contrast, is identifying the true beneficial owner or owners, and the size of their beneficial interests.”