Implied trusts in the family home

Resulting and Constructive trusts

Resulting trust

Westdeutsche v Islington LBC

Resulting trust arises in two circumstances:
Where A makes a voluntary payment to B or pays (at least in part) for the purchase property that is vested in B along or in joint names of A and B, there is a presumption A did not intend to make a gift to B - the money/property is held on trust for A in shares proportionate to contribtuon
Where A transfers property to B on express trust, but the trusts declared do not exhaust the whole beneficial interest

Vandervell

Transferor should positively wish to part with beneficial interest.

Constructive trust

General basis of constructive trusts in 'unconscionability' - Paragon Finance v Thakerar

Conveyance of legal title to both parties

Jones v Kernott [2011] UKSC 53, [51]

(1) The starting point is that equity follows the law and they are joint tenants both in law and in equity.

(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or
(b) that they later formed the common intention that their respective shares would change.

(3) Their common intention is to be deduced objectively from their conduct: “the relevant intention of each party is the intention which was reasonably understood
by the other party to be manifested by that party's words and conduct notwithstanding that he did not consciously formulate that intention in his own mind
or even acted with some different intention which he did not communicate to the other party” ... Examples of the sort of evidence
which might be relevant to drawing such inferences are given in Stack v Dowden, at para 69.

(4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention,
but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, “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”... In our judgment, “the whole course of dealing … in relation to the property” should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions.

(5) Each case will turn on its own facts. Financial contributions are relevant but there are
many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)).’

Conveyance to one party only

Traditional view: Express declarations are preferable, after that only financial contributions to purchase price relevant - Lloyds v Rossett

Express discussions between parties

Examples of clear express common intentions
Eves v Eves
Grant v Edwards


However - Has been criticised. Lewison LJ argued that cannot be right that giving reason why someone is not on the deed inevitably leads to the inference they would have an interest (Curran v Collins)

Implied common intention

Possible to imply a common intention based on the conduct of the parties: Pettitt v Pettitt/ Gissing v Gissing
However, contributions need to be referable to acquisition of the property if they are to ground a claim to a beneficial interest under a constructive trust: Burns v Burns

Impute/Infer?

Impute

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Infer

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Wait - is Jones and Stack on about the inference/imputation of the intention to share, and not the quantification of the share?