Implied trusts: Trusts of the family home

Question 1

What trusts can be implied on marital homes?

Answer 1

· If there is no enforceable express trust, it is necessary to consider the law on common intention constructive trusts.
· Cases may involve sole legal ownership (in which the claimant seeks to establish an interest under a trust) or joint legal ownership (in which there is a dispute as to whether the parties are equitable joint tenants or have separate, distinct shares).

Question 2

How are implied trusts on marital homes assessed?

Answer 2

the holistic approach in Stack v Dowden applies 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 3

True or false: If legal title to a family home is held by cohabitees as joint tenants, it is presumed that they have 50/50 shares in equity.

Answer 3

False

The presumption is one of joint tenancy. Joint tenancy does not involve distinct shares. 50/50 would be a tenancy in common.

Question 4

A couple are civil partners and have lived together for 10 years. They decide to dissolve their partnership and sell their family home which they own as legal joint tenants. There is no express trust over the home. They disagree over how the proceeds of sale should be divided between them and they take the case to court.

How will the court determine beneficial ownership of the family home?

The court has no discretion. They couple are legal joint tenants so they are presumed to be joint tenants in equity too. The court will sever the joint tenancy and award half shares.

They are presumed to be equitable joint tenants but this presumption may be rebutted by evidence of an alternative common intention. The court will determine their beneficial interests based on the whole course of conduct.

The court has a statutory discretion to determine their respective beneficial interests because they are civil partners.

The court will determine beneficial ownership based on the contributions each of them made to the acquisition of the home.

This is a common law marriage because of the length of the relationship. This gives the court discretion to determine their respective beneficial interests.

Answer 4

The court has a statutory discretion to determine their respective beneficial interests because they are civil partners.

On the dissolution of a civil partnership the court can exercise its’ discretion under the Civil Partnership Act 2004 to divide ownership of the property between the parties.

Question 5

A married man purchases a flat to live in with his girlfriend. The man pays the deposit and purchases the flat in his sole name. The man is solely liable for the mortgage. He tells his girlfriend that he can’t put the flat in her name until he tells his wife about their affair, but he assures her that he is holding it on trust for them both and that she has a 50% share. In reliance on these statements, the woman pays all household expenses and contributes equally towards the mortgage repayments.

What claim would you advise the woman to make?

The woman should seek to establish an interest under an express trust.

The woman cannot make any claims because the man is married so the flat will be matrimonial property belonging to the man and his wife.

The woman should seek to establish an interest under a purchase money resulting trust.

The woman cannot make any claims because she did not contribute directly towards the acquisition of the flat.

The woman should seek to establish an interest under a common intention constructive trust.

Answer 5

The woman should seek to establish an interest under a common intention constructive trust.

This would be the best claim to make, based on the assurances made and the woman’s reliance on those assurance

Question 6

What is the two step approach in joint legal ownership cases?

Answer 6

Two step process
Following on from Stack v Dowden, in Jones v Kernott [2011] UKSC 53 the Supreme Court confirmed the two step approach in joint legal ownership cases:
Step 1: Rebutting the presumption
Did the parties have a common intention to hold the property other than as joint tenants? And did the claimant act to their detriment in reliance on that common intention?
Step 2: Quantification
If the parties are not joint tenants, they must be tenants in common. But in what proportions?

Question 7

What is required for sole legal ownership cases to establish beneficial interest?

Answer 7

*In sole legal ownership cases, an individual seeking to establish a beneficial interest will need to establish that they have acquired an interest under a common intention constructive trust. This requires proof of:
i. a common intention that they should have a beneficial interest and
ii. detrimental reliance upon that intention

Question 8

What s being assessed to establish they are not beneficial joint tenants in joint legal ownership cases?

Answer 8

*In joint legal ownership cases, an individual seeking to establish that 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

What factors are looked act when assessing “whole course of conduct”?

Answer 9

Lady Hale produced a non-exhaustive list of factors that may be taken into account when carrying out this exercise:
* Advice or discussions the parties had which may indicate their intention
* The reason legal title was registered in particular names
* The purpose for which the parties acquired the house
* The nature of the relationship
* Whether the parties have children
* How the house was financed
* How the parties arranged other finances and divided responsibility for household expenses

Question 10

When is the whole;e course of conduct looked at?

Answer 10

In sole owner and joint legal title cases

Question 11

What do the courts look at when assessing quantification?

Answer 11

*If an express intention as to quantification can be established, the court will give effect to that intention.
*If an express intention cannot be established, the court will attempt to infer an intention based on the conduct of the parties.
*As a last resort, if it is not possible to ascertain the actual intention of the parties as to quantification of their shares, the court will impute an intention for ‘fair shares’ based on all the ‘whole course of conduct’.

Question 12

True or false: When a couple acquire property as legal joint tenants, it is only possible to rebut the presumption of joint tenancy if it can be proved that they had a different common intention when they purchased the property.

Answer 12

False - Jones v Kernott confirmed that intention could be ambulatory.

Question 13

A cohabiting couple own a house as legal joint tenants. There is no declaration as to beneficial shares in the property. The woman pays the deposit money to purchase the house and a mortgage is taken out in their joint names which the woman pays. The man pays for all other expenses on the property. She wants to leave her partner and she seeks advice as she wants to claim a larger share given her contributions to the deposit and mortgage.

What is the best advice to the woman?

It is presumed that the property is owned as equitable joint tenants. The burden is on the woman to rebut this. It is a heavy burden and it is unlikely that unequal contributions will be enough to rebut the presumption.

It is presumed that the property is owned as equitable tenants in common in equal shares. The burden is on the woman to rebut this. It should be possible to rebut the presumption as it is clear from their conduct that the woman was intended to have a greater share in the property. Their interests will be quantified based on their respective contributions to the deposit and mortgage.

It is presumed that the parties share the beneficial ownership in proportion to their respective contributions. The onus will be on the man to rebut this presumption. It is unlikely that he will be able to do so.

The couple are joint tenants at law and in equity. If they had wanted to own in different shares, they should have declared themselves tenants in common and specified their shares in writing. There is no way to challenge this.

It is presumed that the property is owned as equitable joint tenants. The burden is on the woman to rebut this. It should be possible to rebut the presumption as it is clear from their conduct that the woman was intended to have a greater share in the property. Their interests will be quantified based on their respective contributions to the deposit and mortgage.

Answer 13

It is presumed that the property is owned as equitable joint tenants. The burden is on the woman to rebut this. It is a heavy burden and it is unlikely that unequal contributions will be enough to rebut the presumption.

The burden is on the party seeking to rebut the presumption to adduce evidence and Lady Hale in Stack v Dowden said that this was a “heavy burden” requiring “unusual facts”. Fowler v Barron indicates that unequal contributions alone are not enough to rebut the presumption of joint tenancy.

Question 14

Which of the following provides the best evidence that joint legal owners of a family home do not also intend to be equitable joint tenants?

Only one party takes legal responsibility for the mortgage

Only one party contributes towards household expenditure, including mortgage repayments

One party moving out of the home and ceasing to contribute towards household expenditure

Rigid separation of finances

Express discussions as to beneficial ownership

Answer 14

Express discussions as to beneficial ownership

Question 15

What should be considered when assessing common intention?

Answer 15

· When assessing common intention, statements should be about shared ownership not merely about shared occupation.
· Common intention to share ownership may be evidenced by the legal owner providing an excuse as to why their partner may not be jointly registered as the legal owner.

Question 16

What words can indicate ownership?

Answer 16

Words indicating ownership
* “half yours” Hammond v Mitchell [1991]1 WLR 1127
* 50:50” (Clough v Killey [1996] 72 P&CR D22)
Insufficient for ownership
* “Family home” (Lloyds Bank v Rosset)
* “benefit…both of us” (James v Thomas [2007] EWCA Civ 121)
* “You will be looked after” (Thomson v Humphrey [2009] EWHC 3576 (Ch))

Question 17

How should sole ownership cases be assessed?

Answer 17

· Under Stack v Dowden the starting point in all family homes cases is that equity follows the law.
· A sole legal owner is therefore the sole beneficial owner unless another person is able to establish an interest under a trust. In the absence of an express trust, they will need to demonstrate that a common intention constructive trust has arisen.
· The first step in establishing a common intention constructive trust requires proof of an actual common intention (express or inferred) to share ownership of the property. It is not possible to impute intention at this stage.
· It is also necessary to demonstrate detrimental reliance upon the common intention.
· At the quantification stage the search should still be for the actual intention of the parties but the court may impute an intention for fair shares as a last resort.
· The holistic approach from Stack v Dowden is used both when inferring intention (at the acquisition and quantification stages) and when imputing intention (at the quantification stage only).

Question 18

What are examples of detrimental reliance?

Answer 18

Examples of detrimental reliance
Sufficient
In Eves v Eves (1975) heavy DIY was considered to amount to detrimental reliance.
Similarly in Clough v Killey (1996) renovations to the house counted.
In Grant v Edwards (1986) payment of substantial expenses (including payment of the mortgage) was conduct which the women would not otherwise have embarked upon without an interest in the home.
Not sufficient
In Lloyds Bank v Rosset (1991) decorating did not amount to detrimental reliance.
In Burns v Burns (1983) giving up work and to look after children was not enough.
In Thomson v Humphrey (2009) looking after the family and playing the “traditional wife” was not enough.

Question 19

True or false: In the absence of evidence of an express common intention, it is possible for the court to impute a common intention for a person without a legal interest in the family home to have an equitable interest in that home.

Answer 19

False

Imputation is not permissible at the acquisition stage. It is only possible when quantifying the parties’ interests

Question 20

A woman moved into her girlfriend’s flat, which was registered in the girlfriend’s sole name. The woman repainted the living room and bedroom and bought soft furnishings whilst her girlfriend was on a business trip. When the girlfriend returned home, she asked the woman why she had gone to all this trouble. The woman explained that the flat didn’t feel like “theirs” and her girlfriend reassured her saying “don’t be silly, you know this is your home too”. Two years later, their relationship became strained and her girlfriend asked her to leave the flat. The woman refused saying, “but you said this is my home too”.

Is the woman likely to have a beneficial interest in the flat?

No. The discussions were about ownership of the property but the woman has not detrimentally relied upon them.

Yes. The discussions were about ownership of the property and the woman has detrimentally relied on them by painting the living room and purchasing the soft furnishings.

No. The discussions were not about ownership of the property so even though the woman has detrimentally relied upon them she will not be able to establish a common intention constructive trust.

Yes. Although the discussions were not about ownership, a common intention can be inferred based on the whole course of conduct.

No. The discussions were not about ownership of the property, nor is there any evidence that the woman has detrimentally relied on them.

Answer 20

No. The discussions were not about ownership of the property, nor is there any evidence that the woman has detrimentally relied on them.

In order to establish express common intention the statements must be about shared ownership not merely occupation. Describing the property as the woman’s “home” is unlikely to be enough (see Lloyds Bank v Rosset). Even if it were, this is not followed by detrimental reliance as she has already repainted the rooms in the flat before the statement is made. Further, decoration and purchasing soft furnishings are unlikely to amount to detrimental reliance. It is also unlikely that these actions are enough to infer common intention as they will probably not have added any significant value to the property (see obiter of Lord Walker and Lady Hale in Stack v Dowden and the contrasting cases of James v Thomas and Aspden v Elvy).

Question 21

An unmarried couple buy a weekend retreat in the countryside. The cottage is registered in the woman’s sole name, but the man contributes to the deposit and to the monthly mortgage payments. They split up and the woman changes the locks and says that the man has no rights to the property.

What is the best advice to the man?

The man should claim an interest under an express trust. He has the burden of proof but should be able to establish this based on his financial contributions.

The man should claim an interest under a common intention constructive trust. He has the burden of proof but common intention is likely to be inferred based on his financial contributions.

The man should claim an interest under a common intention constructive trust. There is a presumption of joint beneficial ownership because he has contributed to the deposit and mortgage. The woman has the burden of rebutting this presumption. She is unlikely to be able to do so.

The man should claim an interest under a common intention constructive trust. He has the burden of proof but common intention is likely to be imputed based on his financial contributions.

The man should claim an interest under a purchase money resulting trust because he has contributed to both the deposit and monthly mortgage payments. The woman has the burden of rebutting the presumption of resulting trust. She is unlikely to be able to do so.

Answer 21

The man should claim an interest under a common intention constructive trust. He has the burden of proof but common intention is likely to be inferred based on his financial contributions.

This is the best advice. The man needs to establish that he has acquired an interest but his direct financial contributions to both the deposit and to the monthly mortgage payments should mean that a common intention to share the property can be inferred from conduct.

Question 22

What are the elements of a proprietary estoppel claim?

Answer 22

An assurance made to the claimant.
Reliance by the claimant on the assurance.
Detriment to the claimant in consequence of their reliance.

Question 23

Assurance?

Answer 23

The assurance must be an assurance (a promise) that the claimant has or will acquire a right in property owned by the defendant

Question 24

Reliance?

Answer 24

This means that there must be ‘a sufficient link’ between the defendant’s assurance and the claimant’s detrimental conduct: Wayling v Jones [1995] 2 FLR 1029; Gillett. This is effectively a causation requirement: Campbell v Griffin [2001] EWCA Civ 990. The assurance does not have to be the sole cause of the claimant’s detrimental conduct. It is sufficient if it is a cause of that conduct: Wayling.

Question 25

Detriment?

Answer 25

In Gillett, the Court of Appeal considered this element at length. Robert Walker LJ said that:
· detriment is not a narrow or technical concept
· detriment ‘must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances’
· countervailing benefits can be taken into account when assessing whether the claimant’s reliance was detrimental.

Question 26

Remedy for proprietary estoppel?

Answer 26

he range of remedies which have been awarded includes orders directing a defendant to:
- Transfer ownership of property to the claimant;
- Hold property on trust for the claimant;
- Grant the claimant a property right over their property (eg an easement);
- Grant the claimant a personal right over their property (eg a licence);
- Pay a sum of money to the claimant.

Question 27

Difference between joint tenants and tenants in common?

Answer 27

The equitable title may be held by the couple as joint tenants or tenants in common:
(a) Joint tenants are equally entitled to the family home. As a result, when one partner dies,
the other partner becomes entitled to the family home automatically.
(b) Tenants in common have distinct beneficial interests or shares in the family home. The
size of those shares can generally be in whatever proportion the couple wants – equal
or unequal. As tenants in common are not entitled to the entire family home – just their
defined share in the home – they are not entitled to the whole family home on the death
of their partner. Instead, when one partner dies, their beneficial interest in the home
passes under the terms of their will or under intestacy.

Question 28

How are cohabitants treated differently from married couples?

Answer 28

(a) If the couple were married or in a civil partnership and subsequently divorce (or seek to
have a civil partnership dissolved), the family courts are given wide redistributive powers
under the Matrimonial Causes Act (MCA) 1973 to determine who gets what out of the
divorce. These wide powers can be used to quantify the beneficial interests in the family
home and apply whether or not the couple created an express trust over the home when
they purchased it.
(b) If the couple were not married, engaged or in a civil partnership (ie they were
cohabiting), then their affairs are governed by the ordinary principles of trusts law.
A common myth about people who cohabit is that their relationship amounts to ‘common
law marriage’ and that they therefore acquire the same rights as married couples after
a period of cohabitation. This is not the case – there is no statutory regime equivalent to
the MCA 1973 that applies to cohabitees. If they split up and want to sell the family home,
then their beneficial interests in that home (and therefore the amount of money they will
get on its sale) will be quantified using trusts.

Question 29

How are resulting trusts for family homes assessed?

Answer 29

(a) Only contributions towards the purchase price count. The payment of ancillary
items – such as conveyancing fees, stamp duty or other bills – does not give rise to a
resulting trust.
(b) Only contributions made at the time of purchase count. A cash payment towards the
deposit (on exchange of contracts) or the completion price gives rise to a resulting trust.
However, generally speaking, most of the purchase price of a family home is funded by a
mortgage, which is repaid through subsequent monthly instalments. If the mortgage is not
in your name, but you nevertheless pay off that mortgage after the date of purchase, that
will not give rise to a resulting trust.
(c) Most importantly, a resulting trust only recognises monetary contributions. If a couple
agrees to divide their labour, with one partner (A) buying the house and the other partner
(B) looking after the children (for instance), a resulting trust would completely ignore B’s
non- financial contribution to the family.

Question 30

What are the steps taken for houses where one partner is the registered proprietor?

Answer 30

There are two stages that must be followed in cases where the family home is solely owned:
*
Stage 1 – the common intention constructive trust must be established (where the home is
jointly owned, this is presumed); and
*
Stage 2 – the beneficial interests under the trust must be determined or quantified.

Question 31

How is a common intention constructive trust found?

Answer 31

A claiming partner can only obtain an interest in the family home under a common intention
constructive trust if it can be shown that:
(a) there was a common intention between the partners that both were to have an interest;
and that
(b) the claiming partner acted to their detriment in reliance on that common intention.
There are two methods of establishing these elements:
(a) In method 1, the common intention is express + detrimental reliance.
(b) In method 2, the common intention is inferred from conduct + detrimental reliance.

Question 32

What can a common intention constructive trust be inferred from?

Answer 32

(a) a direct contribution to the purchase price; or
(b) a significant contribution to mortgage payments falling due after the purchase.

Question 33

How is proprietary estoppel found?

Answer 33

Stage 1: Establishing the equity
There are three key elements to establishing a claim in proprietary estoppel:
(a) Assurance
(b) Detriment
(c) Reliance

Stage 2 – the estoppel must be satisfied (remedies).

Question 34

Assurance for proprietary estoppel?

Answer 34

(a) active – the legal owner tells the claiming party that they have or will have an interest in
land; or
(b) passive – there is conduct on the part of the claiming party that clearly suggests that they
think they have a right to property. The legal owner knows this (or must have known it) but
remains silent and fails to disabuse the claiming party of their belief.

Question 35

How can the equity be satisfied for properietasry estoppel?

Answer 35

The remedies that the court can grant include:
(a) transfer of the legal ownership in land;
(b) grant of a lease;
(c) some right of occupancy (eg the right to live in a house rent- free for life);
(d) financial compensation; or
(e) a beneficial share in the home.

Question 36

Question 1
A man started to go out with a woman who lived in the same town. The woman was about
to buy a house. She paid most of the deposit on the house but needed some help from
the man. He agreed to lend her some money, which she repaid the following month. The
mortgage was taken out in her sole name.
The man’s tenancy came to an end around the same time and he lost his job. He moved
into the house. The woman told the man that although the house was in her name, he
should consider the house as much his as it was hers. The man looked for work but could
not find a job. The man was therefore unable to make any contribution to the mortgage
repayments, the running of the house or any renovations to the house.
The relationship has now come to an end. The man did not marry the woman and there
were no children. The woman has put the house on the market.
Does the man have a beneficial interest in the house?
A Yes, because he was the beneficiary under an enforceable express trust.
B Yes, because there was an express agreement to that effect.
C Yes, because he lent the woman money to pay the deposit without which she could not
have bought the house in the first place.
D No, because no declaration of trust was manifested and proved in signed writing.
E No, because the house was in her sole name, which automatically prevents him taking
a beneficial interest.

Answer 36

Option D is correct. In order to work out why, we shall first consider why the other options
are wrong.
Option A is wrong. The woman’s statement to the man that he should consider the house
as much his as hers might demonstrate an intention to create an express trust, but as that
express trust was to be over land, to be effective it must have been evidenced in signed
writing. This has not happened.
Option B is wrong. Whilst there was an express common understanding that the man was
to take a beneficial interest in the house, that would only give rise to a common intention
constructive trust (or a claim for proprietary estoppel) if he had acted on that understanding
to his detriment. There does not appear to be anything on the facts that would constitute
detrimental reliance.
Option C is wrong. Whilst a contribution to the deposit can create beneficial interests under
an implied trust, lending the money for a deposit does not constitute a ‘contribution’ for
these purposes.
Option E is wrong. Just because the legal title to a home is in the sole name of one partner
does not automatically prevent the other partner from getting a beneficial interest in
the home.
Option D is therefore the best answer. For the reasons set out above, the man cannot assert
an interest under an implied trust (resulting or constructive) or proprietary estoppel, nor can
he assert a beneficial interest by way of an express trust. In order to be enforceable an
express trust must comply with s 53(1)(b) of the LPA 1925, ie it must be evidenced in signed
writing. This has not happened.

Question 37

Question 2
Five years ago, a man and his girlfriend were looking for a house that they could move into
and call their family home. They found a house they both liked. The man told his girlfriend
that he would pay the deposit but asked whether she could pay the conveyancing fees for
him because he had forgotten to budget for this. She did so. When they first went to see
their solicitor on the purchase of the house, they agreed that the house should be put in
their joint names. However, after discussions with the bank to get a mortgage, the bank
advised it would be better for the house and mortgage to be in the man’s sole name,
because his girlfriend had a low credit rating that might make it difficult for them to get
mortgage finance. The girlfriend agreed to this.
Over the next five years, the man paid the monthly mortgage instalments. His girlfriend got
a job three years ago, and since then has paid for the expensive work that was done to put
in a new bathroom and kitchen.
The relationship between the man and his girlfriend has now broken down. She has moved
out and the man is looking to sell the house.
Does the girlfriend have an interest in the house?
A Yes, because paying the conveyancing fees gives her an interest in the house under a
resulting trust.
B Yes, because there was an express understanding that she was to have an interest on
which she relied.
C Yes, because whilst there was no express understanding that she was to have an
interest, the fact that she paid to install a new bathroom and kitchen means that she
will get an interest under a common intention constructive trust.
D No, because no trust was manifested and proved in signed writing.
E No, because she did not make any payment towards the deposit or the subsequent
mortgage instalments.

Answer 37

Answer
Option B is correct. The evidence suggests that but for the bank’s advice to keep the house
in the man’s sole name, it would have been registered in the joint name of him and his
girlfriend. That can constitute an express common intention that his girlfriend was to have an
interest in the home. She has also suffered detrimental reliance in the substantial payments
she has made to household improvements and expenses.
Option A is wrong. To give rise to a resulting trust, any contribution must be to the purchase
price itself, not to ancillary items such as legal fees.
Option C is wrong. There was an express common understanding that ownership of the house
would be shared. In any event, in the absence of such an express understanding, it is unlikely
that the payments the girlfriend did make would be sufficient to enable a common intention
of ownership to be inferred. There is no suggestion that she made any significant payment
towards the purchase price or mortgage.
Option D is wrong. Whilst it is correct to say that there can be no express trust, because such
a trust over land would have to be evidenced in signed writing, it is not correct to say that
there cannot therefore be any trust, and a common intention constructive trust will have arisen
on the facts. Such implied trusts do not need to be evidenced in signed writing.
Option E is wrong. Given that there was an express common understanding that the house be
shared, the court can take a wider view as to what constitutes detrimental reliance beyond
those items listed in this option.

Question 38

Question 3
An elderly aunt asks her niece to move in and look after her. The niece loves her aunt but
expresses reservations about whether such a move would be possible. She has a child who
goes to school near to where she lives; she works full- time and there is talk that she might
get a promotion. In order to persuade the niece to change her mind, the aunt promises
that when she dies, she will leave the house to the niece. The niece agrees to move in.
She provides her aunt with round- the- clock care for no pay (other than the aunt meeting all
her living expenses), quits her job and takes her child out of school, home- schooling him
whenever there is a free moment.
Eight years later, the aunt dies. The niece finds out that the aunt has left her house to a
friend.
Which of the following statements best describes why the niece might have an interest
in the house?
A The niece should have an interest under a common intention constructive trust arising
out of the express understanding that she was to have an interest in the house.
B The niece should have an interest under a common intention constructive trust arising
out of an inferred understanding that she was to have an interest in the house.
C The niece should have an interest because she can establish proprietary estoppel
arising out of an active assurance, which automatically guarantees her an interest in
the house.
D The niece should have an interest because she can establish proprietary estoppel
arising out of an active assurance, which means it is likely that she will get an interest
in the house.
E The niece should have an interest because she can establish proprietary estoppel
arising out of a passive assurance, which means it is likely that she will get an interest
in the house.

Answer 38

Answer
Option D is correct. The aunt actively assured the niece that the house would belong to her
and the niece appears to have relied on that assurance to her detriment. Whilst the court has
a discretion about what remedy to award, it is likely that the court will award the niece an
interest in the house. (Indeed, on the facts, it is likely that that interest would be an absolute
ownership right to the entire house. The court would therefore transfer the house to her.)
Options A and B are wrong. Common intention constructive trusts are used to establish
present interests in property (ie when two partners share a house together). They are not
used to establish future interests in property, as in this scenario. The niece will need to
assert proprietary estoppel. Proprietary estoppel prevents the aunt from backtracking on her
assurance that in the future the house will belong to the niece.
Option C is wrong. Whilst proprietary estoppel can be established in this case, that does not
automatically guarantee the niece a proprietary interest in the house. The remedy is ultimately
within the discretion of the court.
Option E is wrong. The assurance in this case was active not passive. This is not a case
where the aunt stood back and allowed the niece to think that she was getting some kind of
proprietary interest – the aunt had actively suggested this.