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).
These were the best Land Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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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 Where the original transfer is rescinded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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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).
These were the best Land Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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