Trusts of the Family Home Flashcards
What should a couple do when they have decided whether they want to hold the equitable estate in the family home as joint tenants or tenants in common?
They should evidence their decision in signed writing by completing the relevant section of the transfer deed (TR1).
What are two regimes dealing with separating couples?
If the couple were married or in a civil partnership and subsequently divorce, the family courts are given wide redistributive powers under the Matrimonial Causes Act (MCA) 1973.
If the couple were not married, engaged or in a civil partnership, then their affairs are governed by the ordinary principles of trusts law.
In what circumstances will a resulting trust arise over the family home?
Where there has been a monetary contribution to the purchase price of the home, made at the time of the purchase.
What is NOT a valid contribution for implying a resulting trust over the family home?
The payment of ancillary items like conveyancing fees or stamp duty.
Contributions to the mortgage repayments after the date of purchase.
Non-financial contributions like physical labour or child-rearing.
What happens to the beneficial interest where co-proprietors of the family home have failed to address it in an express trust?
It is presumed that each partner’s beneficial interest in the home is also joint and equal as equity follows the law.
What are the evidential requirements for a common intention constructive trust to arise?
Evidence of an agreement or common intention and detrimental reliance on that agreement/intention.
How do the courts quantify shares in the family home?
By surveying the the whole course of dealing between the partners relevant to their ownership and occupation of the property to ascertain what is fair.
What are the factors a court may take into account when surveying the whole course of dealing between partner?
Advice or discussions at the time of purchase;
The reasons why the home was transferred into their joint names or only in one of the partners’ names;
The nature of the partners’ relationship;
Whether they had children for whom they had a responsibility to provide a home;
How the purchase was financed, both initially and subsequently;
How the partners arranged their finances; and
How they discharged the outgoings on the home and other household expenses.
What are the differences for establishing CICTs over jointly owned homes versus solely owned homes?
In solely owned homes, the partner whose name is not on the legal title has the burden of establishing that they are entitled to a beneficial interest in the first place.
For jointly-owned homes, there is a presumption of joint beneficial ownership and what will usually be needed is evidence that the couple intended throughout their relationship to keep their financial affairs separate.
How can common intention be express?
Evidence of an agreement (usually oral) or understanding between the couple.
How can common intention be inferred from conduct?
A direct contribution to the purchase price.
A significant contribution to mortgage payments falling due after the purchase.
How can detrimental reliance be evidenced?
Financial contributions towards the house such as paying off some of the mortgage or paying for improvements/alterations to the home.
Substantial payments of housekeeping expenses.
Non-monetary, ‘domestic’ contributions (such as giving up a job to look after children) may well suffice, but the position here is less clear-cut.
What is the effect of proprietary estoppel?
It prevents someone from going back on their word in relation to property when it would be unconscionable to do so.
What are the two stages of proprietary estoppel?
Stage 1 – the estoppel must be established; and
Stage 2 – the estoppel must be satisfied (remedies).
What are the three elements of proprietary estoppel?
Assurance: The legal owner must have made a representation or created or encouraged an expectation that the claiming party would become entitled to an interest in land.
Detriment: The claiming party must show that they acted to their detriment in reliance upon the assurance made.
Reliance: The assurance must cause the claiming party to act to their detriment. A claim in proprietary estoppel will fail if it can be shown that the claiming party acted for reasons other than the assurance.
