Implied Trusts: Trusts of the family home

Question 1

Preface

Answer 1

• Note that ‘family homes’ here applies to cohabitees. Married partners and CPs have their own law
• Also note that this might be in a weird order bc the elements repeat themselves :///

We are only concerned here with less formal relationships
* Both common intention constructive trusts and proprietary estoppel are considered in this deck - both are ways to show proprietary interest

If confused - watch consolidation video

Question 2

How is ownership of property decided for divorce/ dissolution cases?

Answer 2

With statutory discretion under Matrimonial Causes Act or Civil Partnership Act - court allocates fairly between the parties

So rest of this deck is not talking about married/CP couples, but cohabiting couples

Question 3

Can the court reallocate property rights with cohabiting couples in the same way they can reallocate property rights on divorce/dissolution?

Answer 3

No - there is no ‘common law marriage’ nor equivalent statutory provisions applicable to a breakdown of relationship of cohabitees (hence why beneficial ownership is so important!)

Nor is there anything for third parties e.g. mortgagee

Question 4

Who has legal ownership of a property at law?

Answer 4

Whoever holds the legal title; registered as legal owner at Land Registry

May be sole or joint owners

Question 5

In what 2 circumstances will disputes re the ownership of the property arise?

(For cohabitees!)

Answer 5

1. Where there is a sole owner - legal title registered in name of one party but other claims beneficial interest in property
2. Where there are joint owners - legal title to property registrered in name of both parties but no declaration re beneficial interest + claimed that the parties are not beneficial joint tenants

For both, trusts will determine the beneficial ownership of the home

Question 6

Recall (land law), what is the only way the legal title to land can be held?

Answer 6

Either a sole legal owner or joint tenants (cf beneficial title which can be held as joint tenants or tenants in common)

I.e. one person holds legal title or multiple do jointly

Legal owner can hold legal title in any of following ways:
* As full and beneficial owner (no separate equitable title)
* On trust for a sole B
* On trust for more than one B as joint tenants
* On trust for more than one B as tenants in common in equal shares
* On trust for more than one B as tenants in common in unequal shares

Question 7

What will the following look like?
1. A holds land on trust for A and B as equitable joint tenants
2. A holds land on trust for B as sole beneficial owner
3. A holds land on trust for A and B as tenants in common in equal shares
4. A and B hold land on trust for A and B as joint tenants
5. A and B hold land on trust for B as sole beneficial owner
6. A and B hold land on trust for A and B as tenants in common in 80/20 proportion

I.e. who holds title and how

Answer 7

1. A holds land on trust for A and B as equitable joint tenants = A has legal title, A and B have equitable title as joint tenants
2. A holds land on trust for B as sole beneficial owner = A has legal title, B has equitable title
3. A holds land on trust for A and B as tenants in common in equal shares = A has legal title, A and B have equitable title of 50% each
4. A and B hold land on trust for A and B as joint tenants = A and B have legal title, A and B have equitable title as joint tenants
5. A and B hold land on trust for B as sole beneficial owner = A and B have legal title, B has equitable title
6. A and B hold land on trust for A and B as tenants in common in 80/20 proportion = A and B have legal title, A and B have 80% and 20% of equitable title, respectively

Question 8

How will legal owners usually clarify beneficial ownership and in what form?

Answer 8

• Through declaring an express trust - written evidence of which will determine beneficial interest
• TR1 form (needed to transfer legal title to land) includes provision for specifying equitable ownership

But this is not compulsory!

Question 9

What is the presumption if people do not complete the provision for specifying equitable ownership?

I.e. no express trust

Answer 9

That beneficial ownership of the land mirrors legal ownership (because equity follows the law) - for example where legal title held as joint tenants = equitable title held as joint tenants

Stack v Dowden

But this can be problematic for cohabitees who must rebut this presumption to determine their ownership e.g. A and B live in a house registered under A’s name with no express trust - as equity follows the law, only A holds legal and equitable title; B must rebut this presumption

Question 10

How do purchase money resulting trusts apply to family homes?

Answer 10

They do not!

Were previously used, and meant that beneficial ownership reflected couple’s respective contributions to purchase price only (which is why they are no longer used; would be unfair to subject family homes to these kinds of rules especially where traditionally the man would be registered holder of legal title and woman left with nothing unless they could show they contributed to the house)

Question 11

What is used to determine beneficial ownership in the case of family homes and how do they work?

Family homes includes cohabitees (not married or CP)

Referring especially here to cases where beneficial ownership is disputed e.g. breakdown of a relationship, death

Answer 11

• Common intention constructive trusts (to reflect common intention of the parties to share equitable ownership)
• Court will consider wider range of factors than only monetary contributions to the home (‘holistic approach’ - Stack v Dowden) to decide whether beneficial ownership differs to legal ownership

More flexible; considers more than just monetary contributions!

Question 12

If there is an express trust, can a common intention constructive trust be used?

E.g. E and F live in house registered in joint names with express trust declaring they are tenants in common in equal shares

Answer 12

No, the express trust will be conclusive

I.e. one party cannot argue they have a larger share of property than in express trust (but proprietary estoppel may still be used)

Question 13

In what 2 ways can the ‘intention’ in ‘common intention of the parties’ be established?

Answer 13

1. Express (express statements as to ownership)
2. Inferred (determined objectively based on the circumstances)

Question 14

What 2 things does the holistic approach of Stack v Dowden determine?

Answer 14

1. If the equitable interest is different to the legal interest; and (if so)
2. How the parties’ respective interest should be quantified

Equitable interest being different to legal interest is important because it can show that a party has an interest even if they do not have legal interest (as they did not pay for it etc.) or that a party has a different equitable interest than a joint tenancy (in which case they might have a smaller or larger interest)

Question 15

What is the starting point for equitable and legal title?

Stack

Answer 15

Equitable title reflects legal title, so…

• Sole legal owner is presumed to be the sole beneficial owner
• Joint legal owners are presumed to be equitable joint tenants

Question 16

In sole legal ownership cases, what will an individual seek to establish and what 2 things is proof needed for?

Stack

Answer 16

An individual will seek to establish that they have acquired an interest under a common intention constructive trust, requiring proof of:

• A common intention that they should have a beneficial interest; and
• Detrimental reliance upon that intention

E.g. A and B live in house registered in A’s name, no express trust so A holds legal and beneficial title = B must show they have acquired an interest

Question 17

In joint legal ownership cases, what will an individual seek to establish and what 2 things must they show?

Stack

Answer 17

An individual will seek to establish that they are not beneficial joint tenants by rebutting the presumption with reference to:

• Common intention of the parties; and
• Detrimental reliance upon that intention

E.g. C and D live in house registered in joint names, so both hold legal and equitable title = either must prove they are not beneficial joint tenants (so survivorship will not apply)

Question 18

What is the difference between cases of sole and joint legal ownership that an individual will want to prove?

Answer 18

• Sole = that they have acquired an (equitable) interest
• Joint = that they are not beneficial joint tenants (and are actually tenants in common)

Question 19

How can the court establish actual intention?

Answer 19

Based on the whole course of conduct whether express or inferred

Question 20

What does it mean that intention can be ambulatory?

Answer 20

A beneficial interest can be established/presumption of joint tenancy rebutted after acquisition (if circumstances change)

Question 21

What must happen after common intention and detrimental reliance has been established?

Answer 21

The interests of the parties must be quantified by taking into account the whole course of conduct

Question 22

What is the order in which intention re quantification is considered?

Answer 22

1. Express intention as to quantification (and if not…)
2. Court attempts to infer an intention based on conduct of the parties
3. (As a last resort) If the court cannot ascertain the actual intention of the parties as to quantificatino of their shares, the court will impute an intention for ‘fair shares’ based on whole course of conduct

Question 23

What is the two step approach to determine beneficial entitlements in joint legal ownership cases?

FROM HERE: JOINT LEGAL OWNERS

Consider doing sole legal owners first as order was wrong way around

Answer 23

1. Rebutting the presumption - a) did parties have common intention to hold property as other than joint tenants and b) did the C act to their detriment in reliance on that common intention?
2. Quantification - as the parties are not joint tenants but tenants in common, what are their proportions?

Question 24

Must the presumption be rebutted in favour of a tenancy in common in equal or unequal shares?

Answer 24

Can be either…

• May argue for tenancy in common in equal shares for cases involving dispute of beneficial ownership of land after death of one legal owner, as for share of property to pass to person’s estate, they must be tenants in common
• More common to argue for tenancy in common in unequal shares for cases where a couple have separated and disputing their entitlements to the home - one of both might argue for greater than 50% share

(This is quite contextual but main point is that it can be rebutted in favour of either)

Question 25

What factors were included in the non-exhaustive list for evidence that can be adduced to rebut the presumption that parties were not intended to be equitable joint tenants?

I.e. evidence of shared intention

Answer 25

• Advice/discussions parties had
• The reason that legal title was registered in particular names
• The purpose for which parties acquired the house
• Nature of relationship
• Whether parties have children
• How house was financed
• How parties arranged other finances and divided responsibility of household expenses

Question 26

Who must adduce the evidence and how heavy is the burden of rebutting the presumption and what type of facts will it require?

Answer 26

• Is for the party seeking to rebut presumption to adduce evidence
• Is a heavy burden requiring unusual facts

Not clear what facts will be deemed ‘sufficiently unusual’

Question 27

Is greater weight attributed to any of the factors over another? What evidence will be the strongest/best?

Answer 27

Not necessarily - but the court is looking for actual intention of the parties, so evidence re express agreements or discussions as to beneficial ownership will be the strongest/best

Question 28

What is of particular importance in the absence of express discussions?

Answer 28

Financial factors!

Even though this could reach same conclusion as using resulting trust analysis

Question 29

Are the principles of detrimental reliance the same for joint name cases as it is for sole name cases?

Will be discussed more later

Answer 29

Generally - only difference being that in joint name cases the detriment is reliant on the parties’ common intention that interests should be other than joint

Cf sole name cases, common intention of shared ownership

Question 30

What is taken into account when quantifying the interests of the parties?

Answer 30

The whole course of conduct (as with step 1)

Question 31

What intentions will be relevant in quantification and which factors are taken into account?

Same as earlier card

Answer 31

• Express/inferred intention (to ascertain actual intention) is best, but as a last resort courts will impute an intention for fair shares based on whole course of conduct
• Same factors taken into account as step 1, express agreements/discussions best evidence, and financial factors if not

Question 32

What happened in Stack v Dowden?

Example of how presumption is rebutted in exceptional cases

Answer 32

• Dowden given 65% share and Stack 35% share in a home they owned as joint legal tenants
• Couple in a relationship for 27 years whilst raising four kids, had purchased shared home in joint names and contributed unequally to deposit and mortgage (otherwise kept finances separate)
• Made separate bank accounts/investments throughout relationship; this financial independence was held to be indicative that they did not intend a beneficial joint tenancy or to have equal shares in the house

Question 33

If one party takes entire financial burden of a house, is this enough to rebut the presumption of joint beneficial ownership?

Answer 33

No, unequal financial contributions are not enough and further evidence is required!

Fowler - man paid deposit, all mortgage payments and all direct outgoings - was unable to rebut presumption of joint beneficial ownership

Question 34

When can financial circumstances rebut the presumption?

Answer 34

If the purpose of the acquisition suggests as such e.g. Adekunle - mother and youngest son bought house in joint names and had to be registered on the mortgage (as mother unemployed and could not obtain mortgage alone) - the presumption was rebutted on basis that primary purpose of acquisition was a home for the mother even though son also lived there and contributed to mortgage. Was no intention they should be beneficial joint tenants especially as woman wanted all sons to benefit from her only significant asset (her share in the house) rather than passing straight to her son on survivorship

Question 35

What does it mean that intention can be ambulatory?

Jones v Kernott

Answer 35

• It is possible for the common intention of the parties to change over time; that parties had common intention to hold property as joint tenants when first acquired but that intention changed at a later date (e.g. end of relationship)
• I.e. presumption (of mirroring) can be displaced by evidence that common intention was different at time of acquisition or that parties formed a different common intention later

Question 36

What does it mean for interests in the property to ‘crystallise’?

Answer 36

At the date the intention changes, their interests in property crystallise and subsequent events (e.g. capital growth of land) are considered when quantifying respective interests

Question 37

What happened in Jones v Kernott?

Answer 37

• Property purchased by J and K in joint names - deposit paid for by J and mortgage in joint names - contributed jointly from 1985-1993
• Separated in 1993 and split a joint life assurance policy equally; K used to buy new home whilst J used to pay mortgage on property which she lived in for 14.5 years paying all expense herself (K made no further contribution to house or kids meaning he could buy his house)

Held that:

• At acquisition they intended to share jointly
• The separation alone was not enough to infer a change to common intention
• Later action in cashing in policy + prolonged absence of K from home + lack of contribution was evidence they no longer intended to share assets equally

Question 38

What did Jones v Kernott decide in terms of how common intention is deduced and what court should consider?

Answer 38

Common intention is deduced objectively from conduct; court should consider what each party would reasonably have understood to be actual intention of other based on such conduct

Question 39

What did the court decide re quantification in Jones v Kernott and why?

(Using this case as an example bc it’s quite specific)

Answer 39

J received 90% share of house, K received 10%, because…

• Court inferred that couple intended for K’s interest to crystallise upon moving out as this is when he stopped contributing to mortgage and parties divided life assurance between them
• He was able to fund purchase of own property through no longer contributing to shared house (or maintance of children!)
• K could have sole benefit of capital gain on his property, leaving J to have sole benefit of any such gain on formerly shared home

Question 40

What is meant by imputation?

Answer 40

Where the court cannot infer the intention of the parties, they must impute an intention to the parties based on “what their intentions as reasonable and just people would have been had they thought about it at the time”

Question 41

What is the significant difference between inference and imputation and when should each be used?

Answer 41

• Imputation can only occur at the quantification stage and not when rebutting the presumption of joint tenancy
• Otherwise primary aim is to infer intention of parties based on whole court of conduct and non-exhaustive list of factors and leave imputation as a fall back

Has been argued there is little practical difference otherwise!

Question 42

Who will be the beneficial owner where there is a sole legal owner and an absence of an enforceable express trust over the property?

FROM HERE: SOLE LEGAL OWNERS

Answer 42

The sole legal owner will be the sole beneficial onwer unless other person is able to establish interest under common intention constructive trust

E.g. person bought home before they entered into relationship or another reason why it was appropriate to only register house in their name

Question 43

What is the starting point in all family home cases?

Applies to sole and joint

Answer 43

Equity follows the law; if land is held by a sole/joint legal owner(s), they are also the sole/joint legal owner(s) unless there is an enforceable trust over the property

Question 44

What is the two step approach to determine beneficial entitlements in sole legal ownership cases? When can imputation not be used?

Answer 44

1. Establishing an interest - a) did the parties have a common interest for the non-legal owner to acquire a beneficial interest and b) has that person relied on this to their detriment?
2. Quantification - if the non-legal owner can establish an interest, what is the quantum of that interest as a proportion of the property? (can only impute here)

Question 45

What are the 2 routes to a common intention constructive trust?

(This is from sole legal owner element but think it applies to both)

Answer 45

1. Evidence of an express common intention as to shared ownership of property followed by detrimental reliance by the non-legal owner
2. The court infers common intention from parties’ conduct again followed by detrimental reliance (where there is no express common intention)

Court cannot impute at this stage

Question 46

How can the non-legal owner demonstrate common intention to acquire an interest in the land?

Answer 46

Common intention can be ascertained in light of whole course of conduct

See non-exhaustive list from earlier - applies to both sole and joint

Question 47

Even though holistic approach means the court is required to take into account wide range of factors, what remains the best evidence of common intention?

Answer 47

Express agreement/discussions regarding ownership of house

Question 48

Are express statements referring to shared occupation enough?

E.g. “family home”, “benefit both of us”, “you will be looked after”, “your home too”

Answer 48

No, must refer to shared ownership e.g. “half yours”, “50:50”

• Not “family home”, “benefit both of us”, “you will be looked after”, “your home too”

Question 49

Can common intention to share beneficial ownership be inferred from the legal owner providing an excuse (as to why their partner may not be jointly registered as legal owner)?

Answer 49

• Not where the excuse is made to avoid having an argument rather than to prevent partner obtaining intended interest in shared home
• But “you’re too young” (as an excuse that partner under 21 could not own property) and “it’s your divorce” (as an excuse that sharing legal ownership would prejudice partner’s divorce) have been accepted in case law

Question 50

How does the court apply the holistic approach to inferring common intention in sole legal ownership cases?

Answer 50

Takes a restrictive approach…

Question 51

Are household duties/caring for family of great relevance when inferring common intention?

Answer 51

• Often limited relevance as this has to do with paties making lives together and not intention for ownership of property - even where one gives up career or a woman works without pay
• But has been awarded in a case of an abusive and controlling relationship even though woman’s contributions to house ‘did not amount to much’ (awarded 25% share)

Question 52

Will indirect financial contributions or improving the property be capable of inferring common intention?

Answer 52

• Has been held that paying family expeses should be considered where it enables other party to pay mortgage
• Was considered in Stack that improvements which add substantial value to the property would be capable of creating interest - but this has been rejected even where a woman has given up job and made improvements to house

Question 53

How detrimental must the reliance be once the relevant common intention has been established?

Answer 53

Once common intention is established, any act done by them to their detriment relating to the joint lives of parties is sufficient

Has otherwise been held to be conduct which was inexplicable unless they had an interest in the house

See examples

Question 54

What are some examples which have and have not been considered to amount to detrimental reliance?

Answer 54

• Detrimental reliance = heavy DIY, renovations to house, payment of substantial expenses inc payment of mortgage (would not have done without an interest in home)
• Not detrimental reliance = decorating, giving up work to look after children, playing ‘traditional wife’

Question 55

What is the framework for quantifying the size of the non-legal owner’s interest once a common interest trust is established?

Answer 55

1. Evidence of express common intention will be conclusive
2. Without express, court should strive to infer common intention
3. If not possible, they may impute an intention for ‘fair sahres’ in the ‘whole course of dealing’

Question 56

Is imputation available at both acquisition of an interest and quantification stages?

Answer 56

No - only quantification stage

I.e. court cannot impute an intention to find a common intention that interest was acquired

Question 57

Will ‘somewhat arbitrary’ shares be permissible?

Answer 57

Yes - court entitled to impute with the material available

Aspden - investment of £65-70,000 and work carried out could amount to 25% share in home

Question 58

Will the court consider factors like an abusive relationship when ascertaining the share of the non-legal owner?

Answer 58

No - court is not concerned with redistributive justice and ‘fair shares’ will be ascertained only in light of parties’ dealings with property; is not role of the court to reallocate property based on other matters which have no link to acquisition of property

Graham-York - abusive and controlling partner received 75% share, appeal wanted only 50% but court refused on basis of this having no link to acquisition of property

Question 59

What is the starting point in sole legal owner cases?

Answer 59

The sole legal owner is the sole beneficial owner unless another person can establish an interest under trust - in absence of express trust they need to demonstrate that a common intention constructive trust has arisen

Question 60

Summary of both common intention constructive trusts

Answer 60

1. Common intention that a) individual has obtained equitable interest (sole legal owner) or b) legal owners do not hold as joint tenants but tenants in common (joint legal owner) - shown through 1) common intention express or inferred and 2) detrimental reliance
2. Quantification - expressed, inferred or imputed

Question 61

What is proprietary estoppel? What does it enable the court to do?

Answer 61

• An equitable doctrine enabling a person to informally acquire property (or personal) rights with the objective of preventing unconscionable conduct
• Enables a court to modify parties’ strict legal rights

Question 62

How is proprietary estoppel different to promissory estoppel?

Answer 62

It is a cause of action; the basis of a claim, rather than being limited to a defence

Question 63

What will a successful proprietary estoppel give rise to?

Answer 63

An ‘equity’ - court determines how to satisfy equity through a broad discretion as to which remedy they use - can award the C a personal right or property right (inc a right under trust)

Question 64

What are the 2 cases in which proprietary estoppel will commonly arise?

Answer 64

1.An acquiescence case - A mistakenly believes they have a right in land owned by B, and in reliance on that belief act to their detriment in circumstances where B is aware of mistake but does not attempt to correct it/prevent them acting to detriment
2.An assurance case - B assures A that they have or will acquire a right in relation to B’s property and A acts to their detriment in reliance on that

Only considering assurance cases

Question 65

Two examples of assurance cases…

Answer 65

1. Pascoe v Turner - C and D started living together in C’s house, C then moved out of house to live with mistress and told D ‘the house is yours’ several times - D made various repairs and redecorated the house at cost - C never transferred house to D and 3 years later initiated proceedings to recover possession of house from D - court held that C made assurance to D that house was hers and D acted to detriment = D had established an equity by way of proprietary estoppel
2. Greasley v Cooke - wife of man who jointly inherited house cared for husband’s mentally ill sister but was not paid for services (and rest of family) - after husband’s death the family members who inherited house commenced proceedings to recover possession from D - D had established an equity by way of proprietary estoppel; was satisfied by giving her licence to occupy house rent-free for rest of her life (had been looking after family for 27 years with no pay and on faith of assurances husband had made to her)

Question 66

What are the 3 elements of a proprietary estoppel claim and what is the one notion that unifies/confirms the others?

Answer 66

1. An assurance made to the C
2. Reliance by C on the assurance
3. Detriment to the C in consequence of their reliance

Unconsionability (i.e. would be unconscionable for D to resile from assurance) confirms the other elements

Question 67

What must the assurance be?

Answer 67

A promise that C has/will acquire a right in property owned by the D

Must relate to land

E.g. can be that D will grant C an easement, but not that C will always be financially secure (as this does not relate to the land)

Question 68

How clear must the assurance be?

Answer 68

Need not be explicit - can be inferred from indirect statements, but must be ‘clear enough’ though this is hugely dependent on context

Can be based on how well C and D able to understand one another e.g. Throner v Major - a farmer of very few words gave another farmer (part of a farmer community) documents relating to assurance policies on his life and mentioned features of the farm that were only relevant to someone who would have continuing involvement with the farm

Question 69

What does it mean that the ‘reliance’ on the assurance will ultimately be a causation requirement?

Answer 69

There must be a ‘sufficient link’ between the assurance and C’s detrimental conduct

Question 70

Must the assurance be the sole cause of the conduct?

Answer 70

No - sufficient that it is a cause of that conduct

Question 71

If the C would have acted in same way if assurance had not been made, would proprietary estoppel claim fail on the reliance element?

Answer 71

Mixed case law - some cases held that it would fail but others that it is not fatal to claim

• Taylors - installation of a life in retail premises would have happened anyway
  cf
  Wayling - working as a chef in deceased’s hotel to inherit hotel; would have done it anyway but was not fatal to claim

Question 72

What is the effect of the presumption of reliance on the burden of proof?

Is presumed that C relied on assurance if D makes it and C acts in detrimental manner

Answer 72

The burden of proof (re reliance) transfers to D; D must prove C did not rely on assurance

Question 73

Is detriment a technical concept and how should it be approached?

Answer 73

• Not a narrow/technical concept
• Must be approached as part of a broad inquiry re whether repudiation of an assurance is or is not unconscionable in all the circumstances

Question 74

What can be taken into account when assessing whether reliance was detrimental?

Answer 74

Coutnervailing benefits

Question 75

What does it mean that a court must determine whether conduct is detrimental on the assumption that D will dishonour the assurance?

Answer 75

Basically the court must assume D will definitely go back on assurance in deciding whether or not the effect of C’s conduct will be detrimental

E.g. B assures A that he will give him commercial farm. A does not make provision for pension because they expect to receive income-yielding farm. A has saved expense and so this is not prima facie detrimental, but once assumed that B will dishonour assurance, A’s failure to make provision is clearly detrimental as they are less well off in old age

Question 76

Aside from obvious forms of detriment - expenditure and provision of services without payment/less for market value - what else can be considered detriment?

Answer 76

• Subdorinating one’s self to D and allowing D to make significant choices concerning C and his family e.g. how children should be educated
• C passing up opportunities to better themselves/live a better life e.g. not pursuing educational/employment opportunities
• Giving up a secure rented home and moving kids into house with partner after they say the kids will always have a secure home there

Question 77

In cases where C establishes assurance, reliance and detriment, why would their claim potentially not succeed? Is this likely?

Answer 77

• If the court considers it would not be unconscionable for D to dishonour the assurance
• In almost all cases, the 3 will usually be sufficient to establish unconscionability

Question 78

How does the court decide if it would be unconscionable for the D to dishonour the assurance?

Answer 78

Using an ‘objective value judgement’; claim only succeeds if D’s behaviour ‘shocks’ the conscience of the court

Technically do have discretion but very sparingly exercised

(As in will usually allow the claim)

Question 79

When will a claim fail for want of unconscionability?

Answer 79

E.g. Sledmore v Dalby - woman wanted her son-in-law (SIL) to vacate property after having promised they would be given the cottage along with his (now dead) wife - SIL had made substantial improvements to cottage on reliance on promise, but court held it was not unconscionable for woman to renege on promise because…

• SIL had enjoyed rent-free accomodation for 15+ years and enjoyed benefit of his expenditure
• SIL was making minimal use of the cottage; lived with new partner and only slept at cottage 1-2 times per week
• SIL was employed and could pay for own accomodation
• Woman was impecunious and in receipt of state benefits and only sought to recover possession because she was desperate (at risk of being repossessed and sold by secured creditor)

Question 80

What remedies are available for the C in a successful proprietary estoppel case?

Answer 80

Orders directing D to:

• Transfer ownership of property to C
• Hold property on trust for C
• Grant C right over property (e.g. easement)
• Grant C personal right over property (e.g. licence)
• Pay sum of money to C

Question 81

What should the remedy generally not do? As a result, what should it do?

Answer 81

Exceed C’s expectation; court should start with assumption that simplest way to remedy unconscionability constituted by repudiation is to hold promisor to promise

• Aim of remedy is to prevent/undo unconscionable conduct and best way to do this is to satisfy expectation

Question 82

When would fulfilment of the expectation not be an appropriate remedy?

Answer 82

Where…

• D no longe owns property to which assurance relates
• D reneges on the assurance years before it was due to be honoured
• Appropriation of property to satisfy expectation would cause hardship to third parties
• Fulfilment of expectation would be completely disproportionate to C’s detriment
• Fulfilment to expectation would involve enforced cohabitation

Example of disproportionality: disabled 50 y/o person with no expectation of early death secures commitment by carer to look after her for rest of life on low wages on assurance the carer will inherit her mansion - if the 50 y/o dies a few months later without a will to give effect to this: compensation less the mansion would be sufficient to remedy any unconscionability (giving the mansion would be disproportionate)

Question 83

What must the court do when fulfilment of the expectation would not be an appropriate remedy?

Answer 83

Award a remedy which does justice between parties - yardstick is: if the D conferred the proposed remedy upon C, they would be acting unconscionably

So may be a monetary equivalent of what C was promised

Question 84

What can the D do if there is more than one appropriate remedy available?

Answer 84

Choose which one of those remedies should be awarded to C

Question 85

What is an acceleration case?

Answer 85

Where claim is made before assurance due to be honoured

Guest - parents promised son part of farmland after death and in reliance son worked on farm for 22 years with minimal pay - parties quarelled and son left farm - although inheritance of 40% farm after parent’s death would satisfy equity, the son wanted an immediate remedy so had to fashion a proxy for inheritance - SC provided two remedies to fulfil aim of preventing unconscionable conduct which the parents could choose between…
1. Award giving son reversionary interest in 40% of farmland subject to parent’s life interests
2. Order for immediate sale of farmland and payment to son of 40% of proceeds discounted to reflect accelerated receipt

Question 86

What is the difference between proprietary estoppel and common intention constructive trusts?

Answer 86

• Proprietary estoppel = asserting an equitable claim against the conscience of the true owner; claim is a ‘mere equity’ to be satisfied by minimum award necessary to do justice
• Common intention constructive trust = identifying the true beneficial owner(s) and the size of their beneficial interest

Question 87

Summary of everything

Answer 87