Someone recently bought our

students are currently browsing our notes.

X

What Is The Driver Behind The Family Homes Cases

Law Notes > Land Law Notes

This is an extract of our What Is The Driver Behind The Family Homes Cases document, which we sell as part of our Land Law Notes collection written by the top tier of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Land Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

What is the Driver behind the Family Homes Cases?
Intention?

*

*

Fits with the requirement for genuine agreement (albeit inferred) Problem 1: This would seem to constitute an express trust o Gardner: D's act of conferment will constitute either a declaration of an express trust of land (in the single name scenario),
? or a disposition of a subsisting beneficial interest (in the joint names scenario).
? The law requires that acts taking these particular forms must be done in writing.

*
Writing is characteristically missing from the cases in which we are interested.

*
Therefore, w/o writing, we cannot argue that the law should give effect to D's act nonetheless, and that doing so is a proper mission for the jurisdiction under discussion, without more.

*
Problem 2: Equity as an instrument of fraud cannot help this o No need for reliance
? Under the suggestion, C needs to rely on the common intention.

*
This was a requirement of earlier decisions (e.g. Pettit), but was omitted from the account given in Stack v Dowden and Abbott v Abbott. o Problem with the redress
? Even if reliance is present, why is right to give effect to that?

*
We could give effect to a reliance loss, but it should track C's actual loss, not the whole thing D purported to confer. Reliance loss?

*
Fits more easily with the cases - no need for invented agreements

*
Problem 1: Does not fit the remedy o Gardner: Under our jurisdiction, a genuine common intention that C should have such-and-such a beneficial interest will result in his gaining that interest.
? If the project were to redress C's reliance loss, this would be a surprising result

*
If C only contributed PS10,000 to the house, why should they get 50% of it?

*
Only sometimes will C's reliance loss be the promised share of the house (e.g. if forewent getting a different house) Redressing Unjust enrichment

*
What is it?
o Gardner:
? Unjust enrichment occurs where C enriches D without basis

*
It's commonly thought that C needs to be aware of the enrichment, but per Birks, it could work if we don't require some "unjust" factor (e.g. mistake) but simply enrichment w/o basis o To enrich another w/o thoughts at all would be enrichment w/o basis

*
Draws a line between C and D when strangers and when communal relationship o Gardner: Where C and D are strangers, we are disinclined to perceive a transaction between them as having no basis in this way,

Buy the full version of these notes or essay plans and more in our Land Law Notes.

More Land Law Samples