Trusts Of The Family Home Flashcards
What are the difference between tenants in common anda joint tenants?
Joint tenants are equally entitled to family home, if one dies, the other becomes fully entitled automatically.
Tenants in common have distinct beneficial interests or shares in the family home. The size of the shares can be in whatever proportion the couple wants. Not entitled to entire home, and if does, beneficial interest is passed under will/intestate
What happens to the house if couples separate?
This depends on if they were married or unmarried.
If couples were married, the family courts have powers to determine who gets what.
If not married, then their affairs are governed by trust law.
What are express trusts of the family home?
If couples have express trust, then ther beneficial interests are set out in declaration of trust.
Must be evidenced in signed writing, to comply with LPA1925.
what happens if there is not an express trust created over family home?
Must look at implied trusts - resulting trusts that may have arisen by operation of law.
No formalities are needed for this
How does a resulting trust come about from a family home?
If someone contributes to the PURCHASE PRICE that are made contemporaneous with the purchase itself.
Only contributions to purchase price (bills,stamp duty, dont count)
Only contributions AT TIME of purchase count - deposit
Ony recognise MONETARY contributions, NOT labour.
Why are constructive trusts more common that resulting trusts for family home?
Difficulties in the absence of express trust.
Common intention constructive trust is more common
What is the common intention constricted trust of the family home if the home is JOINTLY owned?
If both partners are registered as co-proprietors, they hold legal title jointly and equally.
If no express trust that address beneficial interest, it is presumed that it is also joint and equal.
However, if not expressly intended, then the trust can be IMPLIED to prevent unfairness between parties.
If claiming a party wants to persuade to court they should be entitled to a larger beneficial share, they can rely on this intention to their detriment
What are examples that a claimant partner can persuade court they should be entitled to a larger beneficial share of a family home in a common intention constructive trust when the house is JONTLY owned?
If partner came to a clear agreement, and claiming partner replied on this to ther detriment.
If agreement or common intention have changed over time, change must be supported by detrimental reliance - eg, pays for construction of extension etc.
If absence of any clear agreement as to each partners share, court will require evidence that the parties intended eto share house unequally, and so acted in detriment - through their WHOLE COURSE OF DEALINGS
What are factors the court takes into account when reviewing the whole course of dealings for a common intention constructive trust when a house is jointly owned?
Advice or discussion at time of purchase,
Reasons why the home was transferred into joint names,
Nature of relationship
If they have any children
How purchase w financed, initially and subsequently
How partners arrange finances
How they discharged the outgoings on home
What ist he common intention constructive trust is the home is SOLELY OWNED?
In teh absence of an express trust, the other party may be able to secure a beneficial interest in the homes if a common intention constructive trust can be esbtaished.
What are the 2 stages of common intention construction trust for a SOLELY owned home?
Common intention constructive trust must be established
Beneficial interests under trust must be determined or quantified
How is a common intention constructive trust of a SOLELY OWNED home established?
Lloyds Bank v Rosset
Common intention between partners that both were to have interest,
And,
Claiming partner acted to detriment in reliance of this intention.
What are the 2 ways in which a common intention can be made for a constructive trusts of SOLELY OWNED house?
Express + detrimental reliance
Inferred from conduct + detrimental reliance
What is an express common intention for the esbtalishment of a constructive trust ?
usually an oral agreement or understanding between the couple that the house was to be shared beneficially.
What is an inferred common intention establishing a constructive trust of SOLELY OWNED house?
If no express common agreement, court must look at conduct.
A direct contribution to purchase price
A significant continuation to mortgage payments falling due after the purchase
