Trust 9 - Family homes Flashcards
What is required for an express trust of the family home
- agreement evidenced in writing
- Land Reg TR1 form has a section on it
What are common intention constructive trusts?
Mechanism for determining beneficial ownership, reflecting common intention of the parties
Common intention can either be express or inferred
Do purchase funds resulting trusts apply to the family home
No - a holistic approach is used using Common Intention Constructive Trusts
What is the starting presumption for trusts of family homes?
Beneficial ownership of land mirrors legal ownership
What is the assumption in Joint Tenancy cases
Own the property in equal shares
What must be done to establish that legal title and equitable title is different in Joint Tenancy cases?
- Rebut the presumption of equal shares
- quantify the shares of the parties
How is the presumption of equal shares in a joint tenancy rebutted?
- looking at whole course of conduct.
- requires heavy burden requiring unusual facts
- with reference to common intention
- either express or inferred
- don’t need to show reliance
What factors are considered when determining common intention?
‘Whole course of conduct’
- Advice or discussions (best evidence)
- Reason legal title was registered in particular names
- Purpose for acquiring house
- Nature of relationship
- If parties have children
- Financing of home
- Arrangement of finances and divided responsibility
Joint tenancies - Once common intention that property should be held as tenants in common is found, what must the courts do next?
Interests must be quantified
Joint tenancies - Once common intention that property how are interests quantified?
- express intention of parties, if not
- implied by parties’ conduct
- impute an intention for ‘fair shares’ based on whole course of conduct as a last resort
What are the cases on Joint Tenancies
- mother and son bought house in joint names as M needed S’s name on the mortgage - no Joint tenancy
- bought house as a couple, split up, cashed in life policy, he moved out for 14 yrs not contributing further - intention had changed therefore no longer joint tenants his interest crystallised when he moved out.
Where a property was purchased in joint names and both contributed but kept their finances otherwise completely separate, what was held?
It was indicative that they didn’t want a beneficial JT or to have equal shares
Sole legal ownership - What is the starting point for sole legal ownership
equity follows law, so only one party owns the property.
Sole legal ownership - Words that indicate common intention for ownership:
Half yours
50:50
Sole legal ownership - How would you establish an interest in a sole legal ownership property?
- common intention
- relied on it to detriment
Sole legal ownership - Words that don’t indicate common intention for ownership (just shared occupation):
Family home
Benefit… both of us
You’ll be looked after
Sole legal ownership - How else can common intention be evidenced?
excuses as to why partner may not be jointly registered.
However, inferences shouldn’t be drawn too readily and not inferred where legal owner made excuse to avoid an argument
Sole legal ownership - When has inference of common intention been declined?
- Individual caring for her family
- Woman gave up career or worked without pay
- Despite woman making very substantial improvements to property and gave up job to work for man’s business so he could make payments
Sole legal ownership - When has inference of common intention been accepted?
- substantial cash and time in converting a barn
Sole legal ownership - What is the test for detrimental reliance?
Conduct inexplicable
Sole legal ownership - What are examples of sufficient detrimental reliance?
- Heavy DIY
- Renovations
- Payment of substantial expenses
(Inexplicable conduct)
Sole legal ownership - What are examples of insufficient detrimental reliance?
- Decorating
- Giving up work to look after children
What is proprietary estoppel?
Enables a person to informally acquire property (or personal) rights to prevent unconscionable conduct
What assurances regarding real property is proprietary estoppel encountered?
- B assures A they have or will acquire a right in relation to B’s property and in reliance on that, acts to their detriment
- A mistakenly believes they have a right in land owned by B, and in reliance on that, act to their detriment where B is aware of mistake but doesn’t try to correct it
