What Is The Driver Behind The Family Homes Cases

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

  • 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

  • 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.

  • 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

  • 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 10,000 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?

  • 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

        • 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

  • Gardner: Where C and D are strangers, we are disinclined to perceive a transaction between them as having no basis in this way,

    • Their being strangers makes us expect C to have been more alert; we are unsympathetic, both empirically and normatively, to the assertion that he had no particular thoughts as he enriched D.

    • But in a context like ours, characterised by an emotional relationship between C and D, it is different.

      • Here, we find it unsurprising if C lets his guard down, and so behaves towards D with no particular thoughts;

  • Etherton: There are particular policy reasons which underpin giving effect to the trust in this context

    • Therefore, it can’t be used for other trusts.

• Problem 1: Relief

  • Me: Etherton sees relief here because of the amount of money C expended, not intending to give a smaller share than her contributions suggested

    • While this fits with the facts of Stack, it doesn’t fit with the single name cases where the interest given is much smaller

  • Gardner: A claim based on unjust enrichment would aim to restore...

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