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Implied trusts of the home (Background (Why (3) s53(1)(b) LPA 1925 - when…

- - - - S53(2) LPA 1925 - implied trusts immune to formalities
  - - - a) Rebut presumption of 50/50 ownership - no issue if happy to divide equally, but one party may want to claim more
      - b) Quantification question
    - - a) Acqusition question - person whose name is on title presumed to have 100% interest - party who is not the legal owner must demonstrate interest under one of the implied trusts
      - b) Quantification question
- - - - Discussed list of factors
        
        Contributions to home
        
        Discussions - formal and informal
        
        Relationship
        
        Outgoings
        
        Children
        
        Finances
    - - Barnes v Phillips - LLoyd Jones LJ: "(counsel)... submits that the present state of the law does not bar the imputing of a common intention to vary the basis on which property is held. In his submission the search for a different common intention, that is the first stage of the exercise, is not limited to an actual express or inferred intention to the exclusion of an imputed intention.. This is, however, an incorrect reading of the joint judgement of Lord Walker and Baronness Hale in Jones v Kernott with which Lord Collins concurred. Throughout their joint judgement Lord Walker and Baroness Hale make clear that imputation is not permissible at the stage of determining whether there has been a common change of intention, but only at the second stage of determining the share of each in circumstnaces where inference is not possible."
  - - - Jones v Kernott - awarded her 90%
      - Aspden v Elvy - more liberal shift to imputation - based on what is fair in circumstances
      - Barnes v Phillips
- - - - Deposit or responsible for obtaining mortgage - Bull v Bull
        
        Not longer deemed appropriate in context of family home - primary purpose must be commercial
        
        Stack v Dowden considered this too rigid - didn't take into account factors beyond finance - Jones v Kernott approved
    - - Express common intention constructive trust
        
        Lloyds Bank v Rosset - "at the time of acquisition, or exceptionally at some later date... an agreement, arrangement or understanding
        
        "Express discussions... however imperfectly remember and however imprecise their terms"
        
        Objective standards - what would reasonable person have understood from discussion - case law inconsistent
        
        Clough v Killey - "Everything's 50/50" - upheld
        
        Hammond v Mitchell - "Half yours" - upheld
        
        Walsh v Singh - said financial future was secure - insufficient - really need reference to share
        
        Excuses
        
        Eves v Eves - when she asked why she wasn't on the legal title, he lied and told her it was because she had to be 21 - lying provides indication that party knows other party has an interest
        
        Grant v Edwards - lied and told her it would prejudice her divorce - also allowed
        
        Curran v Collins - woman alleged excuse - he said had never had any intention of sharing - only made excuses to avoid an argument - worked because no actual intention found
        
        Acted to his or her detriment or significantly altered his or her position
        
        Detriment must follow agreement
        
        6 more items...
      - Inferred common intention constructive trust
        
        Conduct
        
        Older case law based on finances - more liberal than purchase money resulting trust - allows for later mortgage payments
        
        Lloyds Bank v Rossett - "direct contributions to the purchase price... whether initially or by payment of instalments" - "doubtful whether anything less will do"
        
        Now look at other factors - parties don't always have ability to pay into purchase price
        
        Stack v Dowden - "law has moved on" - approved in Jones v Kernett
        
        Important obiter dicta
        
        Payment of substantial household expenses
        
        1 more item...
        
        Imputation - rejected in Stack v Dowden - "While an intention may be inferred as well as express, it may not, at least in my opinion, be imputed. That appears to me to be consistent both with normal principles and with the majority view of this House in Pettitt, as accepted by all but Lord Reid in Gissing v Gissing, and reiterated by the Court of Appeal in Grant v Edwards. The distinction between inference and imputation may appear a fine one, but it is important."
        
        "An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements. An imputed intention is one which is attributed to the parties, even though no such actual intention can be deduced from their actions and statements, and even though they had no such intention. Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend."
  - - - Effect to agreement - Clough v Killey
      - No share agreed so infer - Holman v Howes - approved of Stack for single name cases - use same factors
    - - "Holistic approach" - Abbott v Abbott
        
        Jones v Kernott, Lord Walker - "Lord Diplock, in Gissing v Gissing, pointed out that, once the court was satisfied that it was the parties' common intention that the beneficial interest was to be shared in some proportion or other, the court might have to give effect to that common intention by determining what in all the circumstances was a fair share. And it is that thought which is picked up in the subsequent cases, culminating in the judgement of Chadwick LJ in Oxley v Hiscock, and in particular the passage which was given qualified approval in Stack v Dowden: 'the answer is that each 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.'"
        
        Lord Collins - "I agree, therefore, that authority justifies the conceptual approach of Lord Walker and Lady Hale that, in joint names cases, the common intention to displace the presumption of equality can, in the absence of express agreement be inferred (rather than imputed) from their conduct, and where, in such a case, it is not possible to ascertain or infer what share was intended, each will be entitled to a fair share in the light of the whole course of dealing between them in relation to the property."
      - As a last resultm impute intention - Aspden v Elvy