implied trusts - trusts of family home

Question 1

in the absence of an enforceable trust over the property, what is the presumption for cohabits who purchase a family home in joint names?

Answer 1

presumed that they are equitable joint tenants

Question 2

what are the two ways that legal title to land can be held as?

Answer 2

sole legal owners
joint tenants

Question 3

what does written evidence of an express trust determine?

Answer 3

it determines the beneficial interests in the property

Question 4

what does a common intention constructive trust do?

Answer 4

it provides more flexible approach for the court when determining beneficial ownership, as it allows the courts to take into account a wider range of factors than just simply monetary contributions to the home.

Question 5

what did Stack v Dowden establish?

Answer 5

established that the court should take a ‘holistic approach’ to determine whether (i) the equitable interest is different to the legal interest, and, if so (ii) how the parties’ respective interests should be quantified.

Question 6

do the courts have discretion to reallocate property rights on divorce or dissolution of a civil partnership?

Answer 6

yes the do, they have discretion to determine their respective beneficial interests because they are civil partners/married.

Question 7

do the courts have discretion to reallocate property rights when dealing with property rights of cohabiting couples or third parties?

Answer 7

no they do not
if legal title to a family home is held by cohabits as joint tenants, then it is presumed to be a joint tenancy

Question 8

for joint legal ownership cases, who needs to rebut the presumption that they are not beneficial joint tenants?

Answer 8

the individual who seeks to establish they are not beneficial joint tenants will need to rebut the presumption by establishing a common intention to that effect, coupled with qualifying detrimental reliance.

Question 9

when the court is trying to establish the actual intention of the parties - what do they consider?

Answer 9

when looking at express or implied intention the courts base it off of the ‘whole course of conduct’

Question 10

what does it mean that the intention of the parties can be ‘ambulatory’?

Answer 10

means a beneficial interest can be established or the presumption of joint tenancy rebutted after acquisition (if circumstances change)

Question 11

if there is not an express intention which can be established - what do the courts do?

Answer 11

the court will attempt to infer an intention based on the conduct of the parties.

Question 12

if it is not possible to ascertain the actual intention of the parties as to quantification of their shares - what do the courts do?

Answer 12

court will impute an intention for ‘fair shares’ based on all the ‘whole course of conduct’

Question 13

what is the 2 stage process in joint legal ownership cases that Jones v Kernott established?

Answer 13

1. rebutting the presumption
2. quantification

Question 14

what did Jones v Kernott establish?

Answer 14

established that intention can be ambulatory (meaning it is possible for common intention of parties to change over time eg, parties had common intention to hold property as joint tenants when it was first acquired but that intention changed at a later date).

Question 15

what is proprietary estoppel?

Answer 15

an equitable doctrine enabling a person to informally acquire property (or personal) rights. objective is to prevent unconscionable conduct

Question 16

in ‘assurance’ cases what must the C prove?

Answer 16

must prove: assurance, reliance, detriment and unconscionability

Question 17

what are the 3 elements of a proprietary estoppel claim (Thorner v Major)?

Answer 17

1. an assurance made to the C
2. reliance by the C on the assurance
3. detriment to the C in consequence of their reliance

Question 18

what does it mean by the first element in a proprietary estoppel claim ‘an assurance made to the C’?

Answer 18

assurance must be an assurance (a promise) that C has or will acquire a right in property owned by the D.

Question 19

does an assurance need to be explicit?

Answer 19

no assurance doesnt need to be explicit, it can be inferred from indirect statements

Question 20

If a D makes an assurance to the C and the C acts in a manner which is detrimental - what is the presumption?

Answer 20

it is presumed that the C relied on the assurance
(the effect of the presumption is to transfer the burden of proof in relation to reliance to the D)

Question 21

what is the effect if a C establishes a proprietary estoppel?

Answer 21

it generates an ‘equity’ that the court must ‘satisfy’ the equity by fashioning an appropriate remedy. [there are a range of remedies that the court can provide for]

Question 22

does proprietary estoppel act as a defence only?

Answer 22

not it also acts as a cause of action