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Trust & Co-ownership - Coggle Diagram

- - - - can buy or sell
      - might have both legal and equitable rights
        
        holds trust for themselves and B
        
        LPA 1925 s 36
    - - receive income from land, living on land etc
      - if land sold get proceeds
      - not on registry, no owner's rights
      - can bind C (got legal title from A)
        
        C no idea cuz not on register
        
        if in AO --> LRA Sched 3
  - - - individually no particular share
      - if one dies, no right pass to someone else
        
        right of survivorship
      - no one holds more or less than others
      - 4 unities
        
        AG Securities v Vaughan
        
        Possession
        
        each is equally entitled
        
        interst
        
        same type (if one lease all lease)
        
        Title
        
        get from same transfer or AP
        
        Time
        
        get at same time
      - Severance
        
        JT --> TiC
        
        not reversible, must happen before u die
        
        TiC only in equity - severe is doing to equitable rights
        
        Default: TiC in equal shares
        
        how?
        
        Method 1: LPA 1925 s 36(2): Notice in writing to all other JTs
        
        unilateral, dont need others consent
        
        others = JT for the remainder
        
        irrelevant from initial contribution (default still equal shares)
        
        severing tenant must be alive
        
        no need for signed writing
        
        must want to sever immidiately
        
        must be served, but
        other tenants dont have to see/read it
        
        LPA 1925 s 196(3)
        
        sufficiently served if left at the last known place
        
        Williams v Hensman
        
        Method 2: an act operating on one's own share
        
        e.g. try to sell/take out mortgage on ur share
        
        alientates interset / act to change equitable interest
        
        legal mortgage will sever
        
        First National Securities v Hegerty
        
        but not equitable mortgage
        
        unclear whether leasing will do
        
        no cases
        
        bankruptcy yes
        
        Re Palmer: sever at bankruptcy declaration
        
        insolvency act 1986 s 421A - court order, prevent survivorship
        
        Method 3: Mutual agreement
        
        consensual
        
        no need for writing
        
        Burgess v Rawnsley
        
        miscommunication, 1 thought getting married, 1 thought just living there
        
        while severing one dies
        
        2 more items...
        
        : severed by mutual agreement despite no agreement on price
        
        Method 4: Course of dealing
        
        similar to method 2
        
        dealing w all the shares
        
        e.g. if split rent profits, or talk abt unequal shares
        
        cant just declare behind other's back
        
        Gore and Snell v Carpenter
        
        marriage fail, husband die before agreement
        
        similar to Burgess
        
        but court say not enuf evidence for sever
        
        1 more item...
        
        Davis v Smith
        
        succeeded, EL contract not finalized and one die
    - - land divided up
        
        e.g. 25 vs. 75%
      - can leave interest to heir
        
        LPA 1925 s 184: if die all at once, die in the order of oldest first
        
        survivorship DONT apply
      - never have all of 4 unities
      - ONLY IN EQUITY
    - - doesnt change legal title
      - legal title is w joint tenancy ≤ 4 ppl
        
        NO legal for TiC
      - severance and TiC JUST EQUITABLE
        
        LPA 1925 s 36(2) "no severance...permissible"
      - legal estate ALWAYS = joint tenants
        
        only equitable can be held in common
      - if A dies
        
        legal title in JT
        
        B has legal title all to themselves
        
        Equitable in TiC
        
        someone else inherit A's share, B dont have it all
        
        B: entirety of legal title, hold on trust for themselves and A's heir
  - - - dont care how many ppl behind it
      - dealings easier
  - - - C unburdened by trust
    - - want econ liquid
      - transaction easier
      - marketability vs. beneficiary's interest
        
        if land sold replace interest w money
    - - right from land --> proceeds
    - - son and wife buy house (has legal title), parent pay half
        
        overreach happen?
        
        court: yes can, have owner's power
        
        econ interest > equitable
      - young couple second mortgage, default
    - - conveyance of legal estate
        
        e.g. sell of freehold, mortgage
        
        LPA s 2(1): e.g. sell of freehold to purchaser
      - capital money paid to ≥ 2 trustees or a corporation
        
        LPA s 27
        
        if one CANNOt
        
        supposed to prevent fraud
        
        but from Flegg seem to be useless
        
        Bank of India v Sood
        
        if NO capital money, one trustee overreach if 3rd party provides valuable consideration
        
        s 27 confined to capital money?
      - equitable interest capable of being overreached
        
        CANNOT be legal
        
        focus on equitable interest under trust
    - - Mr B mortgage, default, Ms B refuse to leave
        
        Ms B contribute to buying
      - HoL: paying purchase price --> equitable interst
        
        since Mr B is 1 ppl --> NO overreach
        
        ONE TRUSTEE CANNOT OVERREACH
        
        Flegg: Can, cuz 2 trustees
    - - HSBC Bank v Dyche
        
        Fraud: sell from A - B - A to remove C
        
        A try to use LPA 1925 s 2 for fraud
        
        NO overreaching
        
        but theres 2 trustees?
        
        Court: CANNOT if theres fraud
        
        but dont stop overreaching usually
        
        (just testing)
- - - - can say whether JT/TiC
      - LPA 1925 s 53(1)(b): declaring in signed writing
      - Declaration is conclusive
        
        Goodman v Gallant
        
        if in signed writing = conclusive evidence
        
        only exception is estoppel (Nelson v Cynderg) can vary express dec of trust
        
        Pankhania v Chandegra
        
        later event does NOT supersede express dec
        
        UNLESS estoppel
        
        fraud/misrepres/duress invalidate conclusiveness
        
        Proprietary claim is exception
        
        Clarke v Meadus
  - - - is there an express trust ?
        
        is there an implied trust under s 36(2) as 2+ ppl have legal title?
        
        is there implied trust under Stack v Dowden CICT?
        
        1 person legal title, the other try to claim
        
        No 4 unities ( cuz 1 have 1 dont have) --> TiC
        
        joint name vs. single name
        
        if A&B legal title --> Trust
        
        if A has B dont have
        
        if joint legal title MUST BE trust
        
        but does they match?
    - - JT --> No value
      - TiC --> pin down shares
        
        house sold got unequal share
  - - - law return property back to settlor
    - - presumes trust otherwise giving property for free
      - something wrong w express dec
  - - - implied trust NO NEED formalities (LPA 1925 s 53(2))
  - - - NO trust
        
        B need to prove interest in equity
        
        depart from starting point
        
        look at whole course of dealing
    - - There is trust
        
        what proportionate?
        
        e.g. B say equitable interest > half as TiC
- - - - interest proportion to contribution
        
        B contribute to buying house --> something in return
        
        property right share % of contribution (TiC)
        
        Purchase money resulting trust
        
        limitation
        
        only money goes in at time of purchase
        
        dont recognize other contribution
  - - - more suitable for commercial
      - majority approach uncertain & fact dependent
        
        e.g. family doing business?
  - - - Court: No, doesnt include indirect contribution
        
        quite discriminatory for women
        
        Lord bridge: Mrs Rosset hasnt done enuf
  - - - Laskar v Laskar
        
        joint name mortgage (mom, daughter)
        
        only mom legal title
        
        rent it out for money (commercial)
        
        resulting trust
        
        jointly liable for mortgage count (different from rosset)
        
        uncertain area (maybe count/maybe not)
        
        but only in commercial
        
        Wodzicki v Wodzicki
        
        Faizi v Tahir
        
        allow mortgage as basis for resulting trust
        
        after stack dont need to think abt this
  - - - e.g. parent have no property right if they contribute to paying price (presumed as gift)
    - - abolish presumption
- - - - Gissing v Gissing: whether mortgage & household maintenance count
      - Pettit v Pettit
        
        suggest looking at factors other than money
        
        similar to Gissing but w redecorating
      - and then we have stack
        
        unconscionable not to let B have equitable property right
        
        "whole course of dealings"
  - - - especially w detri reli
    - - sole name
        
        A has legal title, B dont
        
        B has burden to establish
      - joint name
        
        both legal title, but one claiming bigger share
        
        B prove why proportion needs change
        
        show why TiC instead of JT
      - common intention that was detri reli by B
        
        then quantification
  - - - Ms D claim 65
    - - rebut by evidence
      - separate bank account = evidence, wanna share unequally
        
        => TiC 65/35
    - - evidence of intention for CICT
      - e.g. how the home was financed, nature of relationship, etc wider than just money
    - - express
      - inferred
        
        action/conduct
        
        objective standard: what would reasonable person understand
      - Imputed
        
        what judge think parties would said
        
        Jones v Kernott: cant use imputation to ESTABLISH, only QUANTIFY
        
        Quantification
        
        Jones v kernott
        
        joint legal title --> 90/10 split
        
        enuf evidence to infer
        
        break up, J live in house w kids for 13 yrs, K come and try to get 50%
        
        imputation v controversial, court intervention - only in quantifying shares
        
        Kernott paragraph [51]
        
        dont sit well w property law
        
        Limitation of imputation
        
        Aspden v Elvy
        
        judges jumping in and picking numbers
        
        quite worrying case - too much discretion
        
        not excuse for favoring sympathetic litigants
        
        Graham-York v York
        
        women abused
        
        : not concerned w justice
        
        need to look at whole course of dealing
      - need actual / inferred intention to establish CICT
    - - e.g. Jones v Kernott
        
        common intention change over time
        
        e.g. Mr K buy another home
      - but need to have trust in the first place
      - changing intentions
  - - - did not overrule Rosset
        
        more strict in CICT for single name
      - single name still restricted - resulting trust
      - a lot of case claim to follow stack now
        
        but facts might --> same outcome as old resulting
        
        Abbott v Abbott, Hapeshi v Allnatt, etc
      - Stack does apply to sole name
      - BUT outcome may be similar to resulting trust anyways
    - - increasingly importnt
      - detri e.g. giving up an opportunity to do smtg
      - need to show detri reli on objective standard
      - used in both single & joint name cases: Hudson v hathway
        
        some say detri reli is especially essential in sole name cases
        
        claim that she has >50 share cuz of detri reli
        
        joint name, series of email discussion
        
        2 points in Hudson
        
        can email satisfy s 53(1) requirement of signed writing
        
        Mr H beneficial interest --> Ms H
        
        detri reli
        
        central element in both joint and sole name cases
        
        purpose is to prevent unconscionability
        
        huge overlap w proprietary estoppel
    - - Starting point: E follows L, B starts w 0 (no title)
      - Amin v Amin
        
        A sole legal name
        
        outcome: legal owner ZERO equitable interest
        
        hold on bare trust for B
        
        A pay nothing, B pay for house/mortgage etc
        
        inferred intention= Ms Amin have no beneficial interest at all
        
        Extreme example
        
        not even co-ownership, straight up trust scenario
        
        court mixing intention to share vs. quantification
  - - - Lady hale in Abbot v Abbott
      - kernott: no presumption of resulting trust
    - - Laskar v Laskar: resulting still used in family
        
        house used for investment but bought by mom and daughter
      - other inconsistent cases
        
        Wodzicki v Wodzicki: father daughter - resulting trust cuz "not close"
        
        Adekunle v Ritchie: mother son used CICT (domestic but not romantic)
      - Stack begin in romantic, extend to domestic
        
        NOT when family do business
        
        uncertainty - not every family use CICT
      - Marr v Collie
        
        Bahamas, own portfolio (joint) + home (under M)
        
        M:pay purchase price, its business --> resulting
        
        C: CICT, since its domestic, should be 50/50
        
        Privy council
        
        starting point: joint legal ownership = joint beneficial ownership even for commercial
        
        willing to extend CICT beyond domestic
        
        only use resulting if NO EVIDENCE of party's intention
        
        if have any evidence (expressed/inferred) --> CICT
        
        quite extreme
        
        resulting vs. CICT isnt that important
        
        the key is underlying: what is parties' intention
        
        when theres evidence, CICT better abled
        
        resulting work w raw data (legal title + payment)
        
        aftermath: not strictly binding
        
        the idea of fairness & focusing on intention
        
        limitations: we have no starting point at all
        
        w domestic/commercial dichotomy easily categorize and know where to start
    - - Kahrmann v Harrison Morgan
        
        neighbors investing in property - use CICT in commercial
        
        problematic: just applying stack
        
        did not refer to marr or any presumption...
      - no revolution after marr
        
        CICT --> family home, maybe for mix family-commercial, but UNLIKELy in pure commercial
      - ppl use whichever in their best interest
        
        direct contribution --> resulting
        
        other kinds --> CICT
  - - - no shares in JT
      - How JT in joint name --> unequal share TiC??
        
        in Stack, Jones starting point=JT in equity --> uneven split?
        
        can't severance via mutual agreement (they hate
        
        even if severance = 50/50, why unequal?
        
        change the share needs signed writing (LPA 1925 s 53(1) & LRA 2002 s 2) but none here
        
        Alternative explanation
        
        when share change --> new constructive trust
        
        constructive trust no formalities (LPA 1925 s 53(2))
        
        not turning JT --> TiC, creating new trust each time intention changes
        
        Kanval v Kanval: support the use of s 53(2)
        
        constructive trust dont need formalities
        
        get around technical --> fair outcome
  - - - still based on detri reli
  - - - burden of establishing trust
        
        express/inferred intention to share
        
        if successful - quantification depends on express/inferred/imputed intention
        
        detri reli
    - - there will be trust (LPA s 36, 34)
        
        claiming bigger share (TiC not JT)
        
        express/inferred intention to share differently
        
        Quantification: express/inferred/imputed
        
        moving to look for detri reli
- - - - get proceeds of share of right
      - TLATA can delay a bit
    - - Trustee duty is to sell "trust for sale"
        
        not selling is exception
        
        abolish by TLATA ss 1-5, replace w "trust of land"
      - socio-economic setting different than now
        
        not designed to protect social
        
        more owner-occupation
      - prioritize land investment
    - - if A & B both legal title --> both trustees
      - or can have professional trustee
      - trustee's duties
        
        "good faith" for "the benefit of beneficiaries"
        
        TLATA s 6
        
        trustee has all power of absolute owner
        
        e.g. sell, mortgage rent
        
        can convey land to beneficiaries
        
        end trust
        
        regard to beneficiary's rights
        
        owe duty of care to beneficiaries (not tortious)
        
        s 8: express trust terms can ppt out
        
        if deliberately make trust, u can say i dont want my trustee to do XYZ
    - - wrong that TLATA--> overreaching dont apply to trust
      - CA clarified in Sabherwal: TLATA dont exclude LPA s 2(1)(ii)
      - s 10: when 2 trustee, purchaser can be confident
      - TLATA conflict w LPA? different purposes
    - - divide the land and give to beneficiaries
        
        NO MORE TRUST after this
      - beneficiaries must each consent (s 7(3))
        
        except for minors (s 7(5))
      - or if court orders partition (s 14)
      - beneficiaries must be of full age & entitled to undivided shares (s 7(1))
      - Bene who get less can get equality money (s 7(1))
      - Trustee can mortgage the parts to pay "equality money" (s 7(2)) or pay off existing mortgage before partitioning (s 7(4))
      - will need sever but easy cuz have mutual consent
      - s 8: express trust terms can opt out, same as s 7
        
        in practice s 7 rarely used
    - - trustee should comply w bene wishes
        
        a right to be consulted
        
        useful for those without legal title
      - consult Bene of full age entitled to interest in possession in the land
      - trustee not bound to honor wishes
      - Bene has larger share --> opinion weights more
      - dont apply to trust existed before TLATA
      - can also opt out using express trust terms
    - - s 1: any Bene w interest can occupy land IF
        
        purpose of trust include occupation
        
        express is easy
        
        implied - looking at cirucmstances
        
        land is held by trustee so as to be available
        
        e.g. if express trust + say its commercial, then s 12 WONT apply
      - s 3: if the land is unavailable cannot do that
        
        e.g. theres a tenant
        
        or if not suitable for u e.g. u have disability
        
        but no definition on "unsuitable"
        
        considering personal characteristics of Bene
    - - multiple Bene - how to prioritize b/ them?
        
        s 13(4)
        
        express - settlor intention/ non-express- circumstances
        
        purpose of land
        
        who are the Bene under s 12 & circumstances
      - s 13(1): cannot exclude all
      - s 13(2) cannot act unreasonably
      - s 13(7) cannot evict a Bene already there
      - s 13(3) can impose reasonable condition on Bene's occupation
        
        s 13 (5), (6): impose condition, e.g. rent
        
        s 13(6) occupation rent: B1--> B2, B1 live B2 out
        
        Rowland v Blades: mansion, B in use pay little
        
        place excluded Bene in position they would have been in not been excluded
        
        Court: DOUBLING the compensation due
        
        w TLATA, use s 13 instead of equity
        
        C suffer no financial loss, jut can't use holiday home
        
        Davis v Jackson: husband bankrupted, trustee appointed - try claim rent from wife
        
        bankrupted trustee cannot rely on s 13 to claim rent
        
        representative of Bene CANNOT s 13 get money
        
        representative NOT entitled to occupy (s 12)
        
        TLATA's limitation: ppl bankrupted wanna get money
        
        2 more items...
      - Evaluating
        
        Rodway v Landy: 2 doctors, both legal, JT in equity, fall out
        
        s 7 partition land --> 2 surgeries
        
        need build wall
        
        s 13: pick 1 to stay there
        
        no need to divide
        
        Court: use s 13
        
        R trustee --> L, L trustee--> R
        
        impose condition on each other
        
        s 13 not very good where trustee bene same person
        
        Pascoe: TLATA lack of coherance
        
        1 more item...
        
        OVERALL
        
        s 12 right to occupy
        
        qualified by s 12 itself + trustee management in s 13
    - - S 14: challenge trustee decision
        
        Trustee or person w interest can apply court order
        
        e.g. trustee, bene, mortgagor, tenant...
        
        order for things that trustee can do
        
        generally order to sell
        
        if Bene in AO --> overriding interest sched 3 para 2
        
        mortgagor get rid of Bene through s 14
        
        pre-TLATA court use LPA s 30 --> replaced by TALTA s 14, 15
        
        can order land be sold at something other than best price
        
        ensure creditor get needed
        
        Re Kingsley
        
        1 T wanna sale 1 T dont
        
        Court: sale but set at specific price, T buy back
        
        useful when 1 trustee wanna sell 1 doesnt
        
        **IF mortgage priority > all co-owners --> just use mortgagee powers
        
        TLATA useful when overriding interest exist
        
        when TLATA use = some PROBLEM w priority (Dixon)
        
        relieve trustee of obligation to consult
        
        the court CANNOT
        
        make new beneficial interest
        
        increase the size of interest
        
        make one Bene sell share to another Bene
        
        Bagum v Hafiz
        
        1 more item...
      - problems w mortgage lender try to possess but theres Bene living there
      - S 15 Factors
        
        consideration when court use s 14
        
        similar factors in s 13
        
        Bene's opinions, whats reasonable, relative size
        
        interests of creditors
        
        purpose/intention of trust
        
        welfare of minors
        
        flexible, can consider factors other than s 15
        
        no longer default --> Sale under LPA 1925 s 30 (dixon)
      - changed the law?
        
        Mortgage Corpn v Shaire: 2 joint legal owner, 1 forged signature, forgor die, mortgagee - s 14
        
        Mortgagee apply for sale to get 25% (the forgor's share)
        
        majority interest held by non-mortgaged party
        
        Court: make new mortgage, wife need to pay 25%
        
        not fair but better
      - how far did it change? (two depressing cases)
        
        Bank of Ireland v Bell: forged signature, mortgagee want sale
        
        creditor's interest = powerful consideration
        
        in this case family home purpose gone
        
        court not always econ > social
        
        Dixon: inconsistent w TLATA's purpose
        
        White v White: Mr/Ms co-own, Mr & child stay, wife apply for sale order
        
        children living - s 15(1)
        
        BUT house purchased BEFORE child born
        
        not part of purpose
        
        the intention = couple living only
        
        since couple broke up, NO intention/purpose
        
        Court order sale
        
        s 15(1)(a) intention = intention of all trust creators
        
        intention when trust is set up
        
        purpose (s 15(1)(b)) can change BUT only if parties agree
        
        but broke up cases parties cant agree => purpose cant change
        
        narrow reading of s 15
        
        TLATA did not help much
        
        Probert: in family, when one party leaves and no children --> only consider creditor interest?
        
        difficult to prove family home vs. easy to establish commercial interest
      - Evaluating s 15
        
        Dixon: mortgagee expected to bear risk
        
        sympathetic cases?
        
        Edwards v Lloyds
        
        owing more money make court favor creditor & order sale
        
        pro-creditor
        
        if sold, co-owner get cash - but most want house
        
        still better, court at least consider s 15 factors
        
        BUT only if apply under TLATA - dont apply if the debtor is bankrupted
  - - - apply for sale if other co-owners dont want
    - - 335A(2): court considerations
        
        creditor's interest
        
        conduct of others
        
        interst of children
        
        NOT the needs of the bankrupted person
      - (3): > 1 year, creditors interst > all other
        
        court WILL ORDER SALE
        
        unless exceptional circumstances
        
        NOT homeless, children etc
        
        maybe v serious illness
    - - Alliance v Leicester v Slayford
        
        NOT abuse of process if mortgagee deliberately make debtor bankrupted
      - Grant v Baker
        
        accountant messed up - bankrupted
        
        court: not sufficiently exceptional
        
        postpone only for 12 month
        
        adult daughter mobility problem
      - Barca v Mears
        
        court: potentially HR issue here (art 8)
        
        obitar: exceptional circumstances should be wider
        
        NO PROGRESS since
      - creditors usually win