Family Property

Question 1

When looking at a family property question, what is the starting point?

Answer 1

Is there an express trust? Likely no - possibly no express declaration, and almost certainly not in signed writing - s53(1) LPA.

Question 2

In what 2 situations may a presumption of resulting trust arise? Case.

Answer 2

Westdeutsche Landesbank v Islington LBC:

1. Voluntary transfer of property.
2. Voluntary transfer of purchase money.

Question 3

Will there be a presumption of resulting trust in relation to voluntary transfer of land? Authority.

Answer 3

No - s60(3) LPA.

Question 4

For a presumption of resulting trust to arise where there is voluntary transfer of purchase money, when must the transfer occur? Case.

Answer 4

At the time of acquisition - Curley v Parkes.

Question 5

In what 2 situations does a presumption of advancement arise? Cases.

Answer 5

1. Parent/loco parentis to legitimate child - Bennet v Bennet.
2. Husband/fiancé to wife/fiancée - Pettit v Pettit.

Question 6

How strong is the presumption of advancement? Case.

Answer 6

Weak, and easily rebuttable - McGrath v Wallis.

Question 7

Give 2 examples of how the presumption of advancement can be rebutted. Cases.

Answer 7

1. One party retaining title deeds - Warren v Gurney.

2. Good reason, e.g. one party cannot get mortgage - McGrath v Wallis.

Question 8

To be admissible as evidence, when must an act/statement have occurred? Case.

Answer 8

Before or at the time of the purchase - Shepherd v Cartwright.

Question 9

Can evidence which shows an illegal/fraudulent motive generally be admitted? 2 cases.

Answer 9

No - Gascoigne v Gascoigne/Tinker v Tinker.

Question 10

In what 2 situations may evidence of an illegal/fraudulent motive not affect a claim? Cases.

Answer 10

1. Not carried out/no one deceived - Tribe v Tribe.

2. Not necessary to establish claim - Tinsley v Milligan.

Question 11

In what circumstances will a constructive trust arise? Case.

Answer 11

Where unconcsionable for legal owner to assert his beneficial interest - Paragon Finance v DB Thakerer.

Question 12

What 2 things must be shown in order to establish a constructive trust? Case.

Answer 12

Lloyds Bank v Rosset.

1. Common intention to share beneficial ownership.
2. Detrimental reliance.

Question 13

Common intention may be express or inferred. Give 2 cases which show how intention may be inferred. (Plus one case which confirms one approach).

Answer 13

1. Direct contribution to purchase/mortgage - Lord Bridge in Lloyds Bank v Rosset.
2. Agreement where one party pays mortgage, other household expenses - Le Foe v Le Foe, supported in Stack v Dowden.

Question 14

How have constructive trusts been applied in commercial contexts? 2 cases and requirements.

Answer 14

Pallant v Morgan/Banner Homes v Luff:

1. Pre-acquisition agreement.
2. Detrimental reliance.
3. Purchasing party resiles too late.
4. Does not need to be contractually enforceable agreement.

Question 15

Why may a constructive trust be more advantageous to a claimant than a resulting trust?

Answer 15

Resulting trust always proportionate to amount contributed; constructive trust quantification varies.

Question 16

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.

Answer 16

1. Oxley v Hiscock - fair and reasonable w/regard to whole course of dealings.
2. Stack v Dowden - what does whole course of dealings suggest parties intended?
3. Jones v Kernott - what did parties intend, based on what is fair and reasonable w/regard to whole course of dealings.

Question 17

Definition of proprietary estoppel (1 case for 1 criteria).

Answer 17

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.

Question 18

What 2 types of assurance are there? Cases.

Answer 18

1. Active - Pascoe v Turner.

2. Passive - Inwards v Baker.

Question 19

Give 3 examples of detrimental reliance. Cases.

Answer 19

1. Financial/personal - Gillett v Holt.
2. Improving property - Inwards v Baker.
3. Caring for someone beyond normal levels of love and affection - Re Basham.

Question 20

What is the aim of the court when satisfying an estoppel equity? Case. The court has discretion - what variety of remedies might be given?

Answer 20

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.