Please enable JavaScript.
Coggle requires JavaScript to display documents.
Law of Trusts - Topic 2 (The Constitution of Trusts & Certainty of…
Law of Trusts - Topic 2 (The Constitution of Trusts & Certainty of Intention)
Intention - what was intended?
Self-declaration of trust
Topic 3 requirements...
...
If land, must comply with s53(1)(b) LPA 1925
ABC situation
Transfer rules
Topic 3 requirements...
If land, must comply with s53(1)(b) LPA 1925
If transfer rules not met, no express trust -> look to consideration, Re Rose, P v W and covenants claims
Gift
Transfer rules
Clarity as to property being gifted (Topic 3)
No transfer, no express trust (Jones v Lock) so consider Re Rose and P v W
Owner to a property who wishes to benefit someone else inter vivo has 3 options identified in Milroy v Lord - gift; self-declaration of trust; ABC situation
Certainty of Intention - was it intended?/ intention to create a trust -> express trust
b) 'Reasonable person'
Courts interpret words/conduct used (Investors Compensation Scheme v West Bromwich Building Society)
Looks at precatory words (Lambes v Earnes)
Not conclusive to look at individual words, will look at document as a whole (Comiskey v Bowring Hanbury/Vucicevic v Aleksic)
Courts consider identity of speaker e.g., lawyer versus friend (Paul v Constance)
Courts consider 'business common sense' (Anold v Britton)
c) Background evidence
Courts consider all background knowledge (Scheme Ltd v West Bromwich Building Society)
a) Intention is approached objectively
Oral declarations, what the person subjectively intended (Gill v Thind)
Legal Transfer Formality Rules
Land
Unregistered = deed passes estate and needs to be registered within two months
Registered = transfer must be registered for legal title to pass s 27 LRA 2002
One must use a deed - s 52 LPA 1925
Shares
Non-listed/private company - stock transfer form in a manner prescribed by Stock Tarnsfers Act 1963
Transferor must execute the form and the company then registers the transfer
Chattels
Delivery - can be symbolic or actual (Re Cole/ Lock v Heath)
Or execute a deed of transfer complying with s 1 LP(MP)A 1989
Right to recover a debt
s 136 LPA 1925 - whole of an existing right can be assigned
Assignment must be in writing and signed by person transferring the right
Express written notice must be given to debtor
Re Ralli's
If A dies (in ABC situation) before transferring property, property passes to B as named in the will but they will hold it on trust for C
Position when transfer has not occurred
ABC situation
Note* C will not have consideration in our problem Q
C gives nominal consideration if A's promise was in a deed (covenant) and C is a party to the deed (Cannon v Hartley)
General rule: if there is no consideration, there is no claim
Exception: constructive trust claim
Re Rose
Applies when the legal title has not passed but the transferor has done everything they can on their side
Pennington v Waine
Applies when Re Rose does not but it would be unconscionable to deny the transfer
Detrimental reliance - need to show that someone has detrimentally relied on the transfer
Can also show unconscionability by showing that the transferor made you believe that there would be a transfer and you act on that belief (promissory estoppel?) (Khan v Mahmood)
Covenant to settle
Promise which is in a deed
Shows sincerity of the promise
B could be said to have provided common law nominal consideration for the covenant to A and then the right to sue is a legal chose in action
B could voluntarily choose to sue A, recover damages and hold them on trust for C
C may be able to to claim directly against A under the Contracts (Rights of Third Parties) Act 1999
Gift