Trusts and the Family Home

Question 1

How are trusts relevant to co-owned land?

Answer 1

Wherever land is co-owned, it may have an express trust declared over it (in accordance with s.53(1)(b) LPA)) or it may have a trust imposed over it to reflect the contributions of the owners.

Legal Title = owned as joint tenants or as sole legal owner, whoever is registered on the deeds / Register. Presumption that equity follows the law; however, may be restriction on the register.

Equitable Title = may be owned as joint tenants or as tenants in common. If joint tenants, the rules of survivorship apply. If tenants in common, do not.

Question 2

What is a common intention constructive trust?

Answer 2

Regulates family homes on the event of separation where the couple are not married but are just cohabitees. Presumed that equity follows the law so if there is a sole legal owner or joint tenants as legal owners, presumed that equitable ownership mirrors this.

Question 3

How to rebut presumption of equitable joint tenants and instead assert equitable tenants in common?

Answer 3

1. Presumption that equity follows the law so equitable joint tenants (since legal title can only be joint tenants).
2. Rebut presumption (intentions, discussions, financial contributions, children, purpose of land i.e as family home)
3. If tenants in common, in what proportion? Court will imput fair shares based on whole course of conduct.

Question 4

What kind of discussions might suggest intention to be tenants in common?

Answer 4

• 50:50
• “equally” or “in equal shares”
• “you are too young to own the house” or “it’s your divorce”

BUT NOT “you will always be looked after” or “this is our family home”.

Question 5

Which factors can affect quantification?

Answer 5

• Date at which interest changes (i.e crystallises at this point) - e.g one partner stops living there or stops making contributions, cashing in life assurance policy. BUT date of end of relationship is not sufficient.

Question 6

How to rebut presumption of sole equitable ownership.

Answer 6

1. Presumption that equity follows law, so if sole legal owner = presumed sole equitable owner
2. Rebut presumption by demonstrating that both partners intended claimant to have equitable interest in home (intention, discussions, purpose, children)
3. Detrimental reliance => conduct is inexplicable otherwise than because of belief of beneficial ownership (i.e heavy labour, adding substantial value to property without charging, not just being traditional wife).

Question 7

What are the elements of a claim for proprietary estoppel?

Answer 7

1. Assurance made from D to C that D had / would receive an equitable interest in the land;
2. C acted in reliance on this to their detriment
   ** Less strict, could be doing things for free, giving up jobs or opportunities, expenditure.
3. It would be unconscionable to allow D to go back on that promise.
   * Not Unconscionable where = C has already enjoyed much of the benefit or does not make use of the benefit
4. Court may choose the remedy but it should be proportionate and not more than C seeks.