A more recent version of these Trusts Of The Family 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 Land Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Trusts of the Family Home _______________________________________________________
Trusts of the family home Acquiring or quantifying a property right which has been created informally (i.e. not legally) Resulting trust:
- Money must be towards the house; proportions in ratio of contribution o Curby v Parker - contribution to solicitor's fees at the time of acquisition could not form a resulting trust o Mumford v Astil - discount against council housing qualifies as a contribution o Midland Bank v Cook - 5% contribution; judge urged counsel to go down constructive trust route o Stack v Dowden majority confirmed that resulting trust is not the most appropriate method in a family home situation - it is too rigid Common intention constructive trust:
- A common intention on which they have relied to their detriment o LLoyds Bank v Rossett: per Lord Bridge, suggested there are 2 ways to establish common intention and doubts whether anything else will do
? Express assurances - verbalising the common intention of coownership. This is an imperfect art, but needs to go beyond (usually) a lifetime tenancy, and needs to go to the legal ownership of the property. A statement that can be objectively assessed to do thisInferred common intention through direct contributions to acquisition - though this is also evidence of a resulting trust, in this context they can be used as evidence of a common intention of co-ownership, and they can also be the detriment required?
Eves v Eves: assurances that weren't meant as to beneficial ownership (in this case that she wasn't old enough to go on the legal title but he would've put her on if she were). 1/4 equity Burns v Burns - 19 years' homemaking found no intention as no financial contribution or express assurance
Oxley v Hiscock - (orthodoxy) indirect contributions must be accompanied by express assurances o Le Foe, however, substantial indirect contributions to the mortgage founded inference per Nicholas Mostyn QC
? Stack v Dowden criticised (obiter) the categorisation; a "wide" view is that mortgages drag out the process of house buying until after transfer -> though Lord Bridge is not technically overruled o "the requirement for direct contributions to establish a common intention constructive trust, in the absence of evidence of a shared understanding based on express discussions, is very definitely being undermined" Luke Barnes, 3 Doc Johnson's Buildings Stack v Dowden per Lady Hale, added the third category of inferred intention from parties' whole course of conduct (in QUANTIFICATION case)
? Jones v Kernott seems to extend this to the imputation of intention, however Capehorn v Harris & Barnes v Phillips has suggested imputation will not stand
? Naturally inference may bleed into imputation via judicial discretion & fact finding What is detriment?
? Lloyds Bank v Rossett - decorating wasn't sufficient
Quantifying the share:
- Acquisition: o Express assurances reflected o Inferred: 30-70%
? Lord Kerr in Jones v Kernott suggests a fair quantification can be imputed, but Lady Hale doubted this & sticks to a posteriori inference
- Quantification (rebutting the strong presumption of beneficial joint tenancy): o Abbey National v Stringer - 100% equity on mother's side o Jones v Kernott - 50:50 to 90:10
? This may cause an issue for 3rd parties i.e. creditors - how would they infer such an extreme incompatibility between law & equity?
Can Stack v Dowden be applied to acquisition cases?
- Technically Stack is not binding precedent on acquisition cases - though lower courts will not be permitted to ignore it
- Abbott v Abbott Lady Hale & other judges of Stack use the principle in an acquisition case (PC)
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