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Law Notes Land Law Notes

Etherton Notes

Updated Etherton Notes

Land Law Notes

Land Law

Approximately 987 pages

Land Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB land law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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Etherton [2008] CLJ 265

The difference between the institutional and the remedial constructive trust

  • Etherton: term constructive trust in institutional sense = a relationship that is similar to an express trust in terms of obligations and enforcement

    • The court’s function is merely declaratory of existing private rights

      • So the constructive trust is a property institution, capable of binding third parties

        • And not an equitable obligation or remedy imposed by the court

    • By contrast, a remedial constructive trust has features of judicial discretion and retrospectivity

      • Thus, if the court feels tha other propeprietary and personal remedies are inadequate, it has the discretion to grant relief by way of a constructive trust

        • And this will be deemed to have arisen at the time when the duty to make restution first arose rather than when the duty is enforced.

  • Lord Millet ex judicially:

    • Only two situations where proprietary restituionary remedies are available

      • 1. Where C can establish a continuing beneficial interest in the asset to which he claims

        • i.e. on arising normally under a resulting trust

      • 2. Where the original transfer is rescinded

        • And specific restitution of the asset is ordered b/c monetary compensation would not be an adequate remedy.

So what is the point of a common intention constructive trust?

  • Etherton: For traditionalist, there is only one answer –

    • It is an institutional trust giving rise to property rights which pre-date the judgement

      • And the judgement of the court is therefore merely declaratory

      • At best the facts might give rise to proprietary estoppel

        • But we’re not talking relief for unjust enrichment here

    • Reason that constructive trust used rather than proprietary estoppel is that estoppel must be registered in order to bind purchasers

      • Whereas constructive trust gets around this, giving effect to the property claims of a spouse who had neither legal title nor entitlement under and express trust.

  • In Gissing v Gissing

    • Lord Reid: There is a difference between imputing and inferring an agreement

      • If there is no evidence of any agreement, then the court cannot infer on

      • But it does not exclude an imputation of deemed intention if the law permits such an imputation

        • Then I am content if the law permits imputation.

    • Lord Morris (maj): The court cannot ascribe intentions which the parties never in fact had.

    • Viscount Dilhorne (maj): If a common intention is absent the law does not permit the courts to ascribe an intention to the parties they in fact never had

      • And to hold that property is subject to a trust on the ground that this would be fair in the circumstances

    • Lord Diplock:

      • Intentions of the parties should be drawn from those of a reasonable man observing their words and conduct

        • Family home often bought with a mortgage on credit – therefore the relevant transaction ought not be restricted to the original conveyance

          • Words and conduct relevant while mortgage is still outstanding

      • Equally, quantification need not be decided at the original transaction

        • But could be left to determination once mortgage discharged, based on what was fair having regard to the total contributions

          • Direct and indirect

            • The wife had made by that date.

  • Oxley v Hiscock

    • Chadwick LJ:

      • In the absence of any express evidence of intention

        • Each party is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property

          • Including arrangements for outgogings e.g. mortgage, council tax, repairs, unstance, housekeeping

            • Which have to be met if they are to live in the property as their home.

  • Stack v Dowden

    • Etherton: concerned with the second stage (quantification), not the first as this was already decided

      • However two points of interest:

        • No need for detrimental reliance on an actual (express or inferred) agreement

          • Moi: not necessarily conclusive though – there was no actual agreement, so they were dealing...

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