IMPLIED TRUSTS FAMILY HOME

Question 1

When is there an implied trust in family home?

Answer 1

• > When owners are not married
• > Family Law Acts give spouses/CPs automatic property rights
• > Often when legal title held by one person

Question 2

How is a beneficial claim made?

Answer 2

Two-fold test of JONES v KERNOTT

1) Establish B interest
2) Quantify it

Question 3

JONES v KERNOTT

Answer 3

• 2 fold claim to establish implied trust in family home
  1) Establish interest
  2) Quantify interest

Question 4

Establishing a trust?

Answer 4

Express declaration = s53(1) b LPA

Or
Implied s53(2) LPA

Question 5

2 types of implied trust

Answer 5

Resulting

Constructive

Question 6

Resulting trust

Answer 6

Get back what put in at time of purchase

LASKAR

Question 7

Constructive trust (more common)

Answer 7

LLOYDS BANK v ROSSET

- 2 ways to prove constructive trust

Question 8

LLOYD BANK v ROSSET

what are the 2 ways to prove an implied constructive trust in the home

Answer 8

1) Expressed common intention

2) Inferred common intention

Question 9

Expressed common intention for implied constructive trust in home?

Answer 9

• Must be properly talked about, not just thoughts
  SPRINGETTE v DEFOE
• Must be detrimental reliance
  EVES v EVES

Question 10

Inferred common intention for implied constructive trusts of home?

Answer 10

• Direct financial contributions (LORD BRIDGE in LB v Rosset)
• Mortgage
• Paying for extention (Hussey v Palmer)

Question 11

Jones v Kernott
Stack v Dowden
Le foe v le foe

Answer 11

Direct financial contribution bar is too high and not fair

Question 12

Why is direct financial controbution still allowed?

Answer 12

Difficult to value non-financial
FULLER-BROWN
- Landscaping is ‘just what men do’

Question 13

How can a Ben interest be quantified once proved?

Answer 13

‘whole course of dealing’ taken into account - HALE
followed by CHADWICK in
Oxley v Hiscocks

Question 14

What sort of factors are considered?

Answer 14

• Length of relationship
• Children
• Whether one gave up career for children
• Arrangement of bank accounts etc
  UNFAITHFULLNESS NEVER RELEVENT

Question 15

Estoppel?

Answer 15

• Any assurance that they would be given interest

THORNER v MAJOK

Question 16

What would qualify as assurance?

Answer 16

• active or passive
• allowing someone to pay all of mortgage for many years
• is on balance of both parties

Question 17

For estoppel to work must be reliance on assurance?

Answer 17

Yes, but consider whole course of dealing (HALE)

Question 18

What if joint tenancy

Answer 18

divided equally when severed

CLARKE v HARLOW