Family Property Flashcards
When looking at a family property question, what is the starting point?
Is there an express trust? Likely no - possibly no express declaration, and almost certainly not in signed writing - s53(1) LPA.
In what 2 situations may a presumption of resulting trust arise? Case.
Westdeutsche Landesbank v Islington LBC:
- Voluntary transfer of property.
- Voluntary transfer of purchase money.
Will there be a presumption of resulting trust in relation to voluntary transfer of land? Authority.
No - s60(3) LPA.
For a presumption of resulting trust to arise where there is voluntary transfer of purchase money, when must the transfer occur? Case.
At the time of acquisition - Curley v Parkes.
In what 2 situations does a presumption of advancement arise? Cases.
- Parent/loco parentis to legitimate child - Bennet v Bennet.
- Husband/fiancé to wife/fiancée - Pettit v Pettit.
How strong is the presumption of advancement? Case.
Weak, and easily rebuttable - McGrath v Wallis.
Give 2 examples of how the presumption of advancement can be rebutted. Cases.
- One party retaining title deeds - Warren v Gurney.
2. Good reason, e.g. one party cannot get mortgage - McGrath v Wallis.
To be admissible as evidence, when must an act/statement have occurred? Case.
Before or at the time of the purchase - Shepherd v Cartwright.
Can evidence which shows an illegal/fraudulent motive generally be admitted? 2 cases.
No - Gascoigne v Gascoigne/Tinker v Tinker.
In what 2 situations may evidence of an illegal/fraudulent motive not affect a claim? Cases.
- Not carried out/no one deceived - Tribe v Tribe.
2. Not necessary to establish claim - Tinsley v Milligan.
In what circumstances will a constructive trust arise? Case.
Where unconcsionable for legal owner to assert his beneficial interest - Paragon Finance v DB Thakerer.
What 2 things must be shown in order to establish a constructive trust? Case.
Lloyds Bank v Rosset.
- Common intention to share beneficial ownership.
- Detrimental reliance.
Common intention may be express or inferred. Give 2 cases which show how intention may be inferred. (Plus one case which confirms one approach).
- Direct contribution to purchase/mortgage - Lord Bridge in Lloyds Bank v Rosset.
- Agreement where one party pays mortgage, other household expenses - Le Foe v Le Foe, supported in Stack v Dowden.
How have constructive trusts been applied in commercial contexts? 2 cases and requirements.
Pallant v Morgan/Banner Homes v Luff:
- Pre-acquisition agreement.
- Detrimental reliance.
- Purchasing party resiles too late.
- Does not need to be contractually enforceable agreement.
Why may a constructive trust be more advantageous to a claimant than a resulting trust?
Resulting trust always proportionate to amount contributed; constructive trust quantification varies.
Where the parties have made no express agreement as to quantification of shares, how will a beneficial share under a constructive trust be quantified? 3 cases.
- Oxley v Hiscock - fair and reasonable w/regard to whole course of dealings.
- Stack v Dowden - what does whole course of dealings suggest parties intended?
- Jones v Kernott - what did parties intend, based on what is fair and reasonable w/regard to whole course of dealings.
Definition of proprietary estoppel (1 case for 1 criteria).
Legal owner of property makes an assurance of future right, claimant acts to detriment in reliance on it (Gillett v Holt), making it unconscionable for legal owner to deny the right.
What 2 types of assurance are there? Cases.
- Active - Pascoe v Turner.
2. Passive - Inwards v Baker.
Give 3 examples of detrimental reliance. Cases.
- Financial/personal - Gillett v Holt.
- Improving property - Inwards v Baker.
- Caring for someone beyond normal levels of love and affection - Re Basham.
What is the aim of the court when satisfying an estoppel equity? Case. The court has discretion - what variety of remedies might be given?
To do the minimum to satisfy the equity - Jennings v Rice. May involve awarding proprietary interest, or may be simply monetary compensation. Court has discretion and will take into account all the circumstances.
