This website uses cookies to ensure you get the best experience on our website. Learn more

GDL Law Notes GDL Equity and Trusts Notes

Implied Trusts Of The Home Notes

Updated Implied Trusts Of The Home Notes

GDL Equity and Trusts Notes

GDL Equity and Trusts

Approximately 631 pages

A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through many applications from mostly first class students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year. You'll notice that we include several different authors' worth of notes. The first is our 2017 author...

The following is a more accessible plain text extract of the PDF sample above, taken from our GDL Equity and Trusts Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

  • Introduction

    - Disputes over shared home implied trusts relevant.

    • disputes when beneficial ownership not clear:

      • 1. property in names of both parties but no declaration of beneficial interests; or

      • 2. property in name of 1 party only, but other party claims beneficial interest.

    • situations giving rise to claims:

      • breakdown of relationship.

      • 3rd party claims: mortgagee seeking to enforce security; bankruptcy trustee wishes to claim home to meet bankrupt’s debts.

    • divorce/dissolution of civil partnership: statutory powers to reallocate property rights.

      • Matrimonial Causes Act 1973: married couples.

      • Civil Partnership Act 2004: civil partnerships – registered same sex civil partners.

    • but many situations not covered by statute trust principles apply.

      • trust principles apply to:

        • 1. unmarried heterosexual couples.

        • 2. claim by third party: e.g. mortgagee.

    - Starting point: equity follows the law – Stack v Dowden [2007, HoL]; Kernott v Jones [2011, SC].

    • joint legal owners 50%

      • UNLESS: 1. different shares intended (Stack v Dowden) – v. unusual; 2. common intention changes (Kernott v Jones).

    • non-legal owner 0%

      • UNLESS: claims share under implied trust.

    - Express declaration of trust conclusive: Pettitt v Pettitt [1970] ([Ld Upjohn]) – but problematic:

    • unrealistic: most people do not take precautions.

    • must comply with s53(1)(b) LPA 1925: evidenced in writing.

      • vs. s53(2) LPA: implied trusts exemptGissing v Gissing [1970] ([Ld Diplock]).

    Issue 1: Establishing an Interest (where legal ownership in 1 name only).

    - Claim by non-legal owner: must be based on existence of trust – [Ld Diplock] (in Gissing v Gissing).

    • implied trust: some situations where inequitable for legal owner to claim full beneficial ownership – needed to overcome s53(1)(b) LPA 1925 formalities.

    Resulting Trust: original method – very certain, but inflexible.

    - Contribution to original purchase price of property: traditional purchase money RT.

    • rationale: presumed intention of contributing party (equity presumes bargain).

    • interest in proportion to contribution: generally set at date of acquisition.

    • Bull v Bull [1955]: mother contributed to purchase of house in son’s sole name; both lived there; son tried to evict mother CoA: [Ld Denning]: RT – son + mother equitable tenants in common.

    - Contribution to mortgage: more problematic only RT if made/agreed at time of purchase?

    • taking out mortgage: regarded as contribution to purchase price (share attrib. to mortgage).

      • Cowcher v Cowcher [1972]: at purchase: Mrs C paid 1/3 purchase price, Mr C took on mortgage for 2/3 value; later: Mrs C paid some mortgage instalments Mrs C’s interest still 1/3: fixed at time of original RT (acquisition).

    • BUT: later mortgage repayments disregarded: RT established on acquisition.

      • Cowcher v Cowcher: wife’s later payments disregarded.

      • Curley v Parkes [2004]: RT only if payments made at time of acquisition.

      • Samad v Thompson [2008]: later mortgage payments give rise to CT, not RT (even though agreed from beginning that non-legal owner would make repayments).

        • Close Invoice Finance Ltd v Abaowa [2010]: applied.

    • but Tinsey v Milligan: later mortgage payments might be considered if anticipated from outset.

    - N.B. RT not suitable for family homes: too inflexible/unfair – Kernott v Jones.

    • CT more suitable: [Baroness Hale] in Stack v Dowden + Abbott v Abbott [2007].

    • exception: home bought as investment – Laskar v Laskar [2008]: RT still used.

    Constructive Trust

    - CT based on common intention of parties – Lloyds Bank v Rosset [1991]: [Ld Bridge]: 2 types.

    • 1. express: based on ev. of express discussions between parties.

    • 2. inferred: from conduct.

    - Express Common Intention Constructive Trusts (ECICT)Lloyds Bank v Rosset: [Ld Bridge]:

    • 1. agreement about sharing ownership: ‘ev. of express discussions between the partners’.

    • 2. detrimental reliance: ‘acted to his/her detriment or significantly altered his/her position in reliance’

    - Express agreement re: ownership (not merely right to reside/shared benefit of living together).

    • timing: generally before or at time of purchaseLloyds Bank v Rosset.

      • but exceptionally, later (if followed by DR)Clough v Killey [1996].

    • must relate to ownership: not merely sharing benefit of living together – objective view:

      • application – NOT about sharing ownership:

        • Lloyds v Rosset: ‘let’s share a family home’.

        • James v Thomas [2007]: ‘for the benefit of both of us’.

        • Walsh v Singh [2009]: ‘your financial future is secure’ just ‘fluff’.

        • Thompson v Humphrey [2009]: ‘you and the children will be looked after’.

      • application – about sharing ownership:

        • Clough v Killey: ‘everything’s 50:50’.

        • Hammond v Mitchell [1991]: ‘half yours’.

        • excuses for not sharing ownership – objective view: can indicate intention to share ownership.

          • Eves v Eves [1975]: ‘you’re too young’.

          • Grant v Edwards [1986]: ‘it will prejudice your divorce’.

            • [Nourse LJ]: raises clear inference of common intention that plaintiff was to have proprietary interest – otherwise excuse not needed.

    - Detrimental reliance: conduct referable to belief in ownership.

    • definition:

      • material contribution/sacrifice facilitating acquisition – [Ld Diplock] in Gissing v Gissing.

      • conduct otherwise inexplicable except for ownership – [Nourse LJ] in Grant v Edwards.

        • (but cf. dubious judgment of [Browne-Wilkinson VC]: any form of material contribution).

        • (+ Law Commission: take into account c.’s gender – but dubious).

      • need not be great, dep. on facts of each case – [Geoffrey Vos QC] in Levi v Levi [2008].

    • must take place after agreement – Clough v Killey.

    • conduct should be explicable only by belief in ownership: substantial / out of ordinary.

      • application – NOT sufficient DR: could be in lieu of rent / personal reasons.

        • Lloyds v Rosset: decorating [Ld Bridge]: de minimis + expected of wife.

        • Lalani v Crump Holdings Ltd [2007]: paying for furniture + running expenses could be in lieu of rent.

        • Thompson v Humphrey...

Buy the full version of these notes or essay plans and more in our GDL Equity and Trusts Notes.

More GDL Equity And Trusts Samples