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Ownership of the Family Home (Q2) - Coggle Diagram
Ownership of the Family Home (Q2)
Joint Legal Owners
Equitable ownership: Express Trusts
Express declaration of trust held under s 53 (1)(b) of the Law and Property Act 1925.
Land Registry form that can be used to declare respective beneficial interests in the land.
Almost certainly conclusive of beneficial ownership but there's a chance that an express trust could later be displaced by proprietary estoppel or constructive trust (Hudson v Hathway).
Constructive Trust
Arises when there is no express trust, but domestic property.
Kernott clarified issues left unresolved in Stack.
Combined judgement: starting point is that equity follows the law are joint tenants both in law and in equity and that presumption can be displaced by showing that the parties had a different common intention at the time when they acquire the home or they later formed the common intention that their respective shares would change.
Court must take a holistic approach and consider the parties 'whole course of conduct'' in relation to the property.
Looks at more than financial contributions, may consider the nature of the relationship, children, purchase, discharge of outgoings.
Financial contributions may still be looked at the most (Barnes v Phillips).
Single Legal Owner
The one partner who holds the legal title is viewed as the 'absolute owner' of the estate.
If another party can show beneficial interest in the property, the property is not absolute and is held on trust.
Purchase Money Resulting Trust
Beneficial interest is shared according to the extent of each party's contribution to the purchase price, unlikely this will be used for family homes.
Common Intention Constructive Trust
Rossett
Actual/express common intention constructive trust.
Agreement must be evidenced by oral discussions between the parties, discussion must relate to the beneficial ownership of the house (James v Thomas), cannot be too vague (Lissimore v Downing).
Other party may provide an 'excuse' as to why they cannot be the legal owner (Curran v Collins), this discussion could give rise to an 'ambulatory trust' (Kanval v Kanval).
Detriment is 'conduct on which the claimant could not reasonably have been expected to embark unless she was to have an interest in the house (Grant v Edwards).
Sufficient conduct has included financial contributions to the purchase price of the property (Drake v Whipp) but could be contributions to housekeeping or payments for significant improvements to the property (Pascoe v Turner).
Cooke v Head shows what sort of physical work will be seen as detrimental conduct, O'Neil; v Holland find that the claimant's agreement to the transfer of one name when previous intention was for two is detriment.
Not sufficient to act as one would have expected to if you had no interest in the house (Midland Bank v Dobson, Slater v Condappa).
Reliance is presumed when detriment is shown, unless legal owner can prove claimant would have done the detrimental conduct had the assurance been retracted (Wayling v Jones).
Inferred common intention constructive trust.
The 'second limb' of Rossett.
Arises when there is conduct from which the court infers a common intention to share beneficial ownership.
Direct payments looked at here towards the deposit or mortgage (Gissing v Gissing).
Financing or carrying out significant improvements to the property can also be sufficient (Windeler v Whitehall)..
Indirect payments are more difficult, have to try prove that these payments help the legal owner in making direct payments. Ivan v Blake said these didn't count but Le Foe v Le Foe said they would.
Kernott took a more generous approach suggesting there didn't beed to be detrimental reliance and doesn't just have to be direct cases. Note: Rossett still stands as Kernott did not reach Supreme Court level, but judges will consider.
Quantification
Clamant can show an actual or an inferred intention as to the precise shares of the parties, they are entitled to those.
If agreement is not precise as to the shares, each party gets what the court considers fair when looking at 'the whole course of dealing between them in relation to the property' (Oxley v Hiscock).
One cannot impute at the acquisition state (Capehorn v Harris).
Proprietary Estoppel
When proprietary estoppel arises, the claimant holds an 'equity of estoppel' over the defendant's land.
Registered land, equity of estoppel is declared by s 116 of the LRA 2002.
Can override an express trust!
Owner of the land has induced, encouraged or allowed the claimant to believe that they have or will enjoy some right or benefit over the property (Thorner v Majors).
In reasonable reliance upon his belief, the claimant has acted to their detriment to the knowledge of the owner (Grant v Edwards).
It would be unconscionable for the owner to act in such a way as to defeat the claimant's expectation.
Court has wide discretion over the remedy granted, may for instance order payment of compensation to reflect detriment incurred )Jennings v Rice) but remedy will not exceed what the claimant expected or the 'minimum equity' to do justice.
Valid Express Trust
S53(1)(b) LPA, trust must be evidenced and signed and will likewise be conclusive (Goodman v Gallant) unless overridden by a subsequent proprietary estoppel trust (Stack v Dowden).