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Family Property Flashcards

1
Q

Presumed Resulting Trusts

When does a resulting trust arise?

A

RT may arise in favour of W by direct/indirect contribution to the acquisition of the property.

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2
Q

Presumed Resulting Trusts

McC v McC [1986] IESC

A
  • H transferred to Cork. Had to sell fam home. W contributed 1/3 of price so entitled but let H use to buy home in Cork. But job paid so spent 1.8k on furniture. HC held W entitled to 1/3 of the furniture.
  • SC held if indirect contribution (gen family fund), in absence of an express/implied agreement to contrary, court infers a trust in favour of her on basis she relieved H of financial burden incurred buying the house
  • Held the 1/3 wasn’t used to buy Cork home. Failed to prove she made indirect contribs to purchase price
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3
Q

Presumed Resulting Trusts

N v N [1992]

A

Work in fam business contribution: W managed flats the couple let out. RT arose in her favour.

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4
Q

Presumed Resulting Trusts

L v L [1989]

A

SC rejected that unpaid work in the home was a contribution: Need legislation to change this.

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5
Q

FHPA 1976 - The Home

What section sets out the home and what is its definition?

A

S.2: The property must be the ordinary place of residence of a married couple.
 It is a dwelling in which a married couple ordinarily reside.
 Broadened to incl. same-sex couples since the Marriage Act 2015.
 Dwelling: building, structure, vehicle, vessel and any portion of land attached / usually occupied / required for amenity / convenience.

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6
Q

FHPA 1976 - The Home

LB v HB [1980]

A

State of marriage irrelevant: lack of intimate relations had no impact on applicability of Act

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6
Q

FHPA 1976 - The Home

SOB v MOB [1981

A

Act applied to couple with church annulment + H lived in Hong Kong + remarried there.

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7
Q

FHPA 1976 - The Home

NIB v Graham [1994]

A

‘Family home’ definition does not include purchaser’s equity:

  • Brothers got mortgage to buy 3000 acre farm in Donegal. Defaulted before completion of sale
  • They’d never taken possession it was not their ‘ordinary place of residence’. Tried to argue acquiring purchaser’s equity conferred them + wives w an interest + argued their wives hadn’t given s.3 consent
  • Rejected: family home doesn’t include purchase’s equity. Must ordinarily reside to get protection.
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8
Q

FHPA 1976 - Consent

What section sets out consent requirements?

A

S.3(1) Consent: Where a spouse without prior written consent of the other spouse purports to convey any interest in the family home to anyone but other spouse, the conveyance will be void.

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9
Q

FHPA 1976 - Only One Consent

Kyne v Tiernan [1980]

A
  • Consent to contract is consent to entire transaction. Here, wife consented to the contract for sale of the property but then refused to give consent for the conveyance.
  • Held her first consent to the contract was valid consent. Consent to contract sufficient.
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10
Q

FHPA 1976 - Only One Consent

NIB v Graham [1994]

A
  • If conveyance + mortgage are in reality part of one transaction, consent to convey is consent to mortgage
  • But if seeking a 2nd mortgage for balance of purchase price: this 2nd mortgage requires a second consent
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11
Q

FHPA 1976 - Fully Informed and Voluntary Consent

Bank of Ireland v Smyth [1996]

A
  • W signed consent form during meeting w bank manager and H present lasting 15 minutes
  • Manager explained concept of conveyance + her consent required, but not that she could lose home if
    repayments not made + didn’t suggest indep legal advice. W thought it only affected lands not her home
  • W argued it wasn’t fully informed consent as she didn’t understand what she was consenting to.
  • SC upheld this: s.3 consent must be fully informed consent: not here, thought only lands not home
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12
Q

FHPA 1976 - Prior Written Consent

Bank of Ireland v Hanrahan [1987]

A
  • H sole owner of property + wanted to mortgage it. Bank told him he needed his W’s consent. He left the title deeds at the bank. B accepted deeds as custodian. W only came the next day and H signed the papers.
  • Was the consent prior? Held the mortgage came into existence after the consent and the docs were only there for safe keeping this it was prior consent. This is criticised as giving the banks too much flexibility.
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13
Q

FHPA 1976 - Prior Written Consent

McMahon v O’Loughlin [2005]

A
  • Written agreement for P to buy lands off D. Disagreement, D purported to rescind. P sought SP.
  • D denied there was a concluded enforceable agreement as no prior written consent of spouse.
  • SP refused: contract for sale wasn’t re-executed after wife’s written consent obtained thus Act not complied with and the contract was void.
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14
Q

FHPA 1976 - Knowledge of Third Parties and Consent

What is the rule?

A

If a purchaser knew (or ought to have known if he or his agent made reasonable inquiries) that no spousal consent was given, held to have actual /constructive knowledge of no consent. Contract is then void.

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15
Q

FHPA 1976 - Knowledge of Third Parties and Consent

Somers v Weir [1987]

A
  • W left fam home due to alcohol problems. H selling home, told S that W gave up her legal rights in the separation agreement they entered into. S’ solicitor never asked to see this agr.
  • When property was being mortgaged and the bank sought consent, bank located her + she refused consent
  • Transpired the separation agreement contained no such waiver of her rights. Lacked consent thus invalid.
  • S fixed w constructive knowledge of the sep agreement bc if his solicitor had asked to see the agreement
    he would’ve realised there was no consent given. Failing to request to see it was unreasonable.
    Now common practice for sellers to make a FHPA declaration that the property is or is not a family home.
16
Q

FHPA 1976 - Knowledge of Third Parties and Consent

Reynolds v Waters [1982]

A
  • Buyers entitled to rely on statutory declarations that property isn’t a fam home within meaning of Act but if there’s something to suggest unreliability or reference to supporting docs, enquiries ought to be made.
17
Q

FHPA 1976 - When Consent Isn’t Needed

What section sets this out and what are the three exceptions? What section defines one of these exceptions and what SC case details it?

A

S.3(3) outlines a number of occasions in which consent to a conveyance isn’t required:

(1) Conveyance to a purchaser for full value
(2) Conveyance by a third party
(3) Conveyance made pursuant to a contract executed before the Act came in/prior to marriage

S.3(6) Defines a purchaser as one who “in good faith” acquires an estate or an interest in property.
Somers v Weir [1987]
- The SC held a good faith purchaser is a purchaser without notice of either the lack of consent or lack of
valid consent and the purchaser must give full value for the property.

18
Q

FHPA 1976 - Dispensing with Consent

What section governs this and what three reasons can ground an application?

A

S.4 allows the owning spouse make an application to have the other’s consent dispensed with. Three reasons:

(i) Where non-owning spouse can’t consent by reason of unsound mind/can’t be located
(ii) Where the non-owning spouse is guilty of desertion or constructive desertion
(iii) Where the non-owning spouse is unreasonably refusing their consent to the conveyance

19
Q

FHPA 1976 - Dispensing with Consent

SOB v MOB [1981]

A
  • H living in HK + remarried there. H wanted to sell the property to provide two homes for both families
  • W refused as she was embarrassed by new accommodation
  • Consent dispensed: unreasonable to withhold for this reason, perfectly adequate accommodation
19
Q

FHPA 1976 - Dispensing with Consent

SOB v MOB [1981]

A
  • H living in HK + remarried there. H wanted to sell the property to provide two homes for both families
  • W refused as she was embarrassed by new accommodation
  • Consent dispensed: unreasonable to withhold for this reason, perfectly adequate accommodation
    R v R [1979]
20
Q

FHPA 1976 - Dispensing with Consent

R v R [1979]

A
  • Married couple co-habited, not intimate for long time. H having affair and W knew this.
  • H wanted to mortgage fam home to buy house for his mistress. W refused consent on basis he couldn’t afford to keep up the increased payments. Held this was a reasonable basis to withhold consent.
21
Q

FHPA 1976 - Dispensing with Consent

Hamilton v Hamilton & Dunne [1982]

A
  • Consent cannot be dispensed retrospectively. Must be sought before conveyance entered into
  • Before commencement of the Act, H agreed to sell home to D2. Failed to complete the sale.
  • D2 sought SP. Judgment in favour of D2 given in 1977.
  • Act enacted, P refused to consent to conveyance and the sale still incomplete. Commenced case in 1979.
  • SC held validity of sale not affected by enactment of act – no retrospective effect.
22
Q

FHPA 1976 - Conduct Leading to the Loss of Family Home

What section allows for applications in relation to this? what does it provide?

A

S.5(1) allows non-owning spouse apply for order to protect family home from future actions of owning spouse
that could lead to a loss of interest in the family home.
S.5(2) app to protect from actions that have already caused damage/loss of interest. Orders compensation.

23
Q

FHPA 1976 - Conduct Leading to the Loss of Family Home

AT v BT [2013]

A
  • Married couple with home in joint names. H in debt and debtors seeking recovery of money.
  • W made s.5(1) app to to temporarily transfer the fam home into her sole name pending his debt cases
  • W argued the level of H’s debts (3.5mn) was suff to satisfy ‘conduct that could lead to loss of interest’
  • Held there was no evidence H had ever sought to secure any of his borrowings on the fam home + no evidence he was likely to engage in further property transactions. Rejected application.
24
Q

FHPA 1976 - Adjourning Proceedings by Mortgagee or Landlord for Possession or Sale of Family Home

What section governs this and what does it provide?

A

S.7 court may prevent mortgagee possession of the family home for failure to comply with the lease or mortgage terms if non-owning spouse agrees to take on obligation of compliance.

25
Q

FHPA 1976 - Non-owning spouse must refuse consent

Barclays Bank Ireland v Carroll [1986]

A
  • H transferred family home to C without W’s consent. C bankrupt. B sought to have mortgage set aside on
    basis original transfer void as no consent. NO: only non-owning spouse can invoke s.3: W had no desire to
26
Q

FHPA 1976 - Applicaiton only to property held by one spouse

Nestor v Murphy [1979]

A
  • Couple jointly owned property. Agreed to sell to N. Then got better deal and tried to back out of sale.
  • Held as it was jointly owned, and the wife agreed to sell the property, the act didn’t apply. Act only apples where the legal interest is vested in one spouse or civil partner alone.
27
Q

Family Law Act 1995 and Family Law Divorce Act 1996

T v T [2002]

A

T v T [2002]

  • W contributed to price + maintenance + upkeep. Gave up career to support H + helped get his practice
    running. At time of divorce, he’d £15m. She’d low income restarting as GP: £5mn proper provision
28
Q

Succession Act 1965

What section governs appropriation and what does it provide?

A

S.56: Right of surviving spouse to require personal representative to appropriate the dwelling the surviving spouse ordinarily resides in. Appropriation is towards satisfaction of the legal right shares
Note: not exercisable after 6mths from receipt of spouse of notification or 1 yr from taking out rep (later one)

Property (12 decks)

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