EQ T5 Trusts of the Family Home

1.1 Lord Upjohn in Pettit v Pettit [1970] at 813E

Land Requires a Written Declaration of Trust - the solution for cohabiting couples would be to write down legally how they intend to share the property. A written dec. of trust would still be regarded as conclusive (Pankhania v Chandegra [2012]).

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1.2 Development of Family Home Trusts - Resulting Trusts - Pettit v Pettit [1970]

where spouses contribute to the position of property, or partake in the paying mortgage instalments, the court may presume a resulting trust between the partners proportional to the size of their contributions.

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1.3 Development of Family Home Trusts - Proprietary Estoppel - Pascoe v Turner [1979]

“the house is yours and everything in it”- dependent upon representation, reliance, and detriment. Estoppel provides an exception to the rule of Section 53 LPA 1925.

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1.4 Development of Family Home Trusts - Constructive Trusts - Lloyd v Rosset

the constructive trust has been held is most appropriate for dealing with family home disputes.

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1.5 Development of Family Home Trusts - Constructive Trusts - Paragon Finance v DB Thakerar [1999]

the basic idea is a holder of the legal estate had behaved unconscionably, by perhaps breaking a promise or deceiving the other party, thus creating the constructive trust

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1.6 Development of Family Home Trusts - Constructive Trusts - Millet LJ in Paragon Finance v DB Thakerar [1999]

the constructive trust arises by operation of law whenever the facts of search that it would be unconscionable or known to deny another person has acquired a beneficial interest in the property”

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1.7 Development of Family Home Trusts - Constructive Trusts - Eves v Eves

Cohabiting couples application. M paid for house. W fixed up (inc breaking concrete, demolishing shed). When he left her for another woman (whom he married), she received some ownership of the house.

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1.8 Development of Family Home Trusts - Constructive Trusts - Lady Hale at 4 in Lynn Anne Abbott [2008]:

“it is now clear that the CT is generally the more appropriate tool of analysis in most matrimonial cases.” - allows the court to look at a wider range of contributions, financial and otherwise.

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2.1 Family Home Trust - Sole Name Cases - Acquiring a Beneficial Interest (2 Ways and Case)

Lloyds Bank v Rosset [1991] - 1. Common Intention through Oral Agreement and Acting to One’s Detriment 2. Common Intention through Direct Financial Contribution to the Purchase Price/Mortgage

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2.2 Family Home Trust - Sole Name Cases - Common Intention through Oral Agreement and Acting to One’s Detriment - Lord Bridge 132-3 in Lloyds Bank v Rossett

Whilst a claim to a beneficial interest in the family home can be based on oral agreements between the couple, the claimant must also act to their detriment and relying on the agreement. Both requirements must be proven.Shouldbe prior to acquisition.

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2.3 Family Home Trust - Sole Name Cases - Common Intention through Oral Agreement and Acting to One’s Detriment - Grant v Edwards [1986]

An oral agreement and an indirect financial contribution that enables the other partner to pay the mortgage instalments secure an equitable interest in the property. The physical labour in Eves was also allowed, but this may be questionable (Rossett)

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2.4 Family Home Trust - Sole Name Cases - Common Intention through Oral Agreement and Acting to One’s Detriment - Thomas v Fuller Brow [1988] at 240 (Slade LJ).

acting to ones detriment without the oral agreement, especially in light of a lack of money, certainly isn’t enough

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2.5 Family Home Trust - Sole Name Cases - Common Intention through Oral Agreement and Acting to One’s Detriment - Pettit v Pettit [1970] & Burns v Burns [1984]

Child rearing and housekeeping are not sufficient reliance (Pettit v Pettit [1970] & Burns v Burns [1984]) since people do not do these things since the think that they have an equitable interest in the house.

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2.6 Family Home Trust - Sole Name Cases - Common Intention through Direct Financial Contributions - Lord Bridge at 132-3 of Lloyds Bank v Rossett

“direct contributions to the purchase price by the partner who is not the legal owner, or payment of mortgage, will readily justify the interference necessary to the creation of constr. trust. It is extremely doubtful that anything less will do.”

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2.7 Family Home Trust - Sole Name Cases - Common Intention through Direct Financial Contributions – Gissing v Gissing [1971]

Lesser contributions than direct contribution to original purchase price or mortgage instalments are not enough, such as furniture and a lawn

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2.8 Family Home Trust - Sole Name Cases - Common Intention through Direct Financial Contributions – Fox LJ at 330-331 in Burns v Burns [1984]

Without an oral agreement, whilst in this case the contribution wasn’t enough to secure, if the Claimant worked to pay the household expenses thus allowing the Defendant to pay the mortgage, it may be enough to secure an equitable interest

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3.1 Quantifying the Size of the Equitable Interests in Family Home Trusts - Sole Name Case - Gissing v Gissing [1971] Lord Diplock at 908-9

1. Any agreed size of shares? 2. evidence of a common understanding? 3. evidence of couple’s years tgt and + up the value of their contributions to determine share sizes. (Option 3 supported in Midland Bank v Cooke [1995])

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3.2 Quantifying the Size of the Equitable Interests in Family Home Trusts - Sole Name Case - Midland Bank v Cooke [1995]

showed that here the court will determine the size of the shares based on complete expenditure (e.g wedding costs, mortgage, housekeeping, indirect contributions etc).

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3.3 Quantifying the Size of the Equitable Interests in Family Home Trusts - Sole Name Case - Oxley v Hiscock [2005]

As Com. Int. may change, look at whole course of dealings. E.g Galararotti v Sebastianelli where although they agreed 50:50 shares, after one partner could not maintain their mortgage payments as agreed, the intention must have changed.

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3.4 Quantifying the Size of the Equitable Interests in Family Home Trusts - Joint Name Case - Stack v Dowden [2007] & Jones v Kernott [2012]

held that if the house was held legally in joint names, then it also would be in equity, giving the couple equal shares. If one half disputed this, then the court would look at the whole course of dealing.

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3.5 Quantifying the Size of the Equitable Interests in Family Home Trusts - Joint Name Case - Baroness Hale at 454 in Stack

: “just as the starting point where there is sole legal ownership is sole beneficial ownership, where there is joint legal ownership there is joint beneficial ownership. The onus is on the person seeking to show that the beneficial ownership if diff.

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3.6 Quantifying the Size of the Equitable Interests in Family Home Trusts - Joint Name Case - Baroness Hale at 465 in Stack

the court must look for what the parties actually intended, not what the court consider fair and particularly at financial contributions, but most importantly the whole course of dealings.

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3.6 Quantifying the Size of the Equitable Interests in Family Home Trusts - Joint Name Case - Imputing Intention in Jones v Kernott

Man left home, made no contri. in years. House in joint names. No clear common intention. Court held sin Com Int may change over course of dealing, they may impute one and award "fair shares"

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4.1 Commercial Cases - Type of Trust - Laskar v Laskar [2008]

It has been suggested that a RT may be the appropriate response to Commercial cases

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EQ T5 Trusts of the Family Home

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