Trusts of Family Home Flashcards
What are the requirements for a resulting trust to arise
Must contribute to the purchase price, at the TIME of purchase. Must be monetary consideration
When does a resulting trust arise?
If someone contributes money to purchase property in the name of another.
What is a common intention constructive trust if the home is jointly owned?
Presumed that each partners beneficiary interest is also int and equal. Not an express trust, it is implied to prevent unfairness between partners. Therefore is a common intention constructive trust
What will court consider when surveying the course of dealings to decide what the beneficial interests should be?
Advice or discussions at time of purchase
The reason why home was in joint names
Nature of relationship
If they have children
How purchase was finance
How partners arrange their finances
What is a common intention constructive trust for a solely owned home?
Other partner may be able to secure beneficial interest, if it can be estbalished that there was common intention.
Common intention between the partners that they were to have an interest, and that partner acted ot their detriment in reliance on that common intention.
What is proprietary estoppel?
Method by which a partner may become entitled to an interest in a family home
It prevents someone from going back on thier word in relation to property.
What contribution courts for common intention constructive trust that is solely owned?
Substantial mortgage repayments
Direct contribution to purchase price
Indirect payments
What are the 3 elements of proprietary estoppel?
Assurance
Detriment
Reliance
What is assurance in proprietary estoppel?
Legal owner must have made representation, or created or encouraged an expectation.
This can be active (telling) or passing (remains silent and does not disabuse)
What is detriment for proprietary estoppel
Claiming party must show they acted to their detriment in reliance on the assurance made.
This could be spending money on refurbishing, working without salary, giving up a job and moving to a new area, looking after someone wh is gravely ill
What is reliance in proprietary estoppel?
Assurance and detriment must be connected to eachother.
What are the remedies for proprietary estoppel?
Transferring legal ownership
Grant of a lease
Some right of occupancy
Financial compensation
Beneficial share
What will court take into consideration when determining proprietary estoppel remedies?
Is legal owner repudiation of assurance unconscionable?
Burden is on legal owner to prove
May be possible for court to order transfer if legal owner is still alive
Court should consider any remedy “””in the round”
