Implied trusts of the family home

Question 1

What is a common intention constructive trust?

Answer 1

When the courts believe that it is in the interest of justice to deal with a property in a way that reflects the arrangement of the situation. Such as co-habiting couples where one has absolute ownership but the other partner has been contributing in some way… they both may deserve equitable ownership. This is if the court agrees.

So the absolute owner partner will hold property in trust for them both (the equitable interest), whilst the legal title will still be in the absolute owner partner’s name.

Question 2

How is a common intention constructive trust imposed?

Answer 2

Where it is just and fair to do so.

Maybe there was an intention to create shared ownership, whether implied or explicit.

Maybe the party claiming entitlement suffered some detriment based on this belief that there was a shared ownership intention.

Question 3

What are 2 common situations give rise to disputes between co-habiting couples?

Answer 3

1. Joint ownerships
2. Sole ownerships

Question 4

If the ownership is joint, how can a common intention constructive trust be enforced?

Answer 4

Usually, it may be that one partner wants to say the other has no right to the property.

There is an automatic presumption that in a joint ownership, the equitable interest splits 50/50.
This can be rebutted by showing that there has been a common intention for it to be unequal AND there has been some detrimental reliance on this intention.

Question 5

What can be used to rebut the presumption of NOT having a common interest constructive trust on the basis that they have joint overship over a property?

Answer 5

1. The reasons why they decided to share the legal title - maybe to avoid arguments?
2. Whether they had children
3. Why the house was bought
4. How the household expenditure was decided and is
5. The nature of their relationship

Question 6

If the ownership is sole, how can a common intention constructive trust be enforced?

Answer 6

Look at the first few slides - by showing that the other partner has made contributions to the property. Show that there has been an intention to share ownership and the other partner has relied on this to their detriment (such as financial contributions and renovations they have done).