A more recent version of these Implied Trusts Of The Home notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble 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:
E&T: Implied Trusts of the Home 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  ([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 exempt - Gissing v Gissing  ([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 : 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?
Buy the full version of these notes or essay plans and more in our GDL Equity and Trusts Notes.