Trust 9 - Family homes

Question 1

What is required for an express trust of the family home

Answer 1

• agreement evidenced in writing
• Land Reg TR1 form has a section on it

Question 2

What are common intention constructive trusts?

Answer 2

Mechanism for determining beneficial ownership, reflecting common intention of the parties
Common intention can either be express or inferred

Question 3

Do purchase funds resulting trusts apply to the family home

Answer 3

No - a holistic approach is used using Common Intention Constructive Trusts

Question 4

What is the starting presumption for trusts of family homes?

Answer 4

Beneficial ownership of land mirrors legal ownership

Question 5

What is the assumption in Joint Tenancy cases

Answer 5

Own the property in equal shares

Question 6

What must be done to establish that legal title and equitable title is different in Joint Tenancy cases?

Answer 6

• Rebut the presumption of equal shares
• quantify the shares of the parties

Question 7

How is the presumption of equal shares in a joint tenancy rebutted?

Answer 7

• 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

Question 8

What factors are considered when determining common intention?

Answer 8

‘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

Question 9

Joint tenancies - Once common intention that property should be held as tenants in common is found, what must the courts do next?

Answer 9

Interests must be quantified

Question 10

Joint tenancies - Once common intention that property how are interests quantified?

Answer 10

• 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

Question 11

What are the cases on Joint Tenancies

Answer 11

• 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.

Question 12

Where a property was purchased in joint names and both contributed but kept their finances otherwise completely separate, what was held?

Answer 12

It was indicative that they didn’t want a beneficial JT or to have equal shares