Implied Trusts

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  • Created by: Aimee
  • Created on: 02-01-17 15:34
When is an implied trust used?
At the breakdown of a marriage at civil partnership to settle what happens to the family home
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3 tools used?
1 Property Adjustment Order 2 s. 24 Matrimonial Clauses Act 1973 3 s.72 and schedule 5 Civil Partnership Act 2002
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The issue with cohabiting unmarried couples?
They don't have the same level of statutory protection as married couples so if your name isn't on the title deeds, you will have to try and acquire an equitable interest.
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An interest in land can be acquired formally or informally. Most trusts are acquired formally via...
s. 53(1) LPA 1925
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An interest in land can be acquired informally by operation of law by equity. This allows what to arise?
An implied trust
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If 2 or more people own the land then the ownership is split into two parts...
Legal ownership, equitable ownership
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A trust can be either...
Express or implied
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Express trust. A declaration of trust of land must be what according to...
manifested or evidenced in writing according to s.53(1) LPA 1925
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Regarding implied trusts, s.53(2) LPA 1925 says...
This section does not affect the creation or operation of resulting, implied or constructive trusts
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2 stages for establishing a beneficial interest
1 Acquisition 2 Quantification
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What is a presumed resulting trust?
Where the person who creates the trust retains a beneficial interest in the trust property
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What are the 2 presumptions made with presumed resulting trusts?
1 That they will retain a beneficial interest in the party 2 That this was the intention of the parties
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Case that outlines the ways a PRT can arise:
Westdeutsche v Islington
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What amounts to contributions to the purchase price?
Direct contributions at the time the property was acquired before the property was transferred to the purchaser
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Can contributions to household expenses establish an interest under a presumed resulting trust?
Burns v Burns [1984]. No indirect contribution i.e. mortgage payments will count as contribution
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What can a presumption be rebutted to?
Presumption of advancement. POA
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How can a presumed resulting trust be rebutted? (2)
1 By demonstrating that the transfer was a gift 2 If the person transferring money is under a moral obligation to provide for the other party. Old fashioned understanding of family responsibilities.
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If a claimant can establish a beneficial interest by a presumed resulting trust then the interest given will be...
...directly proportionate to the contributions made
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Limitation of presumed resulting trust
Useful for those who are financially secure and able to contribute to the property. Not for those who are unable.
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What is a constructive trust?
Where it would be unconscionable for the legal owner to deny the other party a share in equitable ownership of the property
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There is no clear definition of a constructive trust which means...
The courts have a more flexible tool for determining beneficial interests
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Starting point for common intention constructive trust- Case
Lloyds Banks v Rosset.
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Who said that common intention must be shown either express or implied?
Lord Bridge in Rosset
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Express common intention involves:
Agreement + detrimental reliance
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Inferred common intention involves:
Intention figured out by the conduct of the parties. ie. direct financial contribution
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Are mortgage payments considered a direct financial contribution in constructive trusts?
Yes, but not in presumed resulting trusts
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Problems with Rosset: Constructive trusts (2)
1 Still focussed on financial contributions 2 Doesn't consider the context e.g. structure of the family home
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Law has moved on from Rosset to...
Stack v Dowden [2007]
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Explain case of Stack v Dowden
Joint ownership. Cohabiting couple.
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Hale in Stack v Dowden
Context is everything
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Presumption made in S v D to begin to determine where the beneficial interests lie
That the beneficial ownership in the property follows the legal title
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Can this presumption be rebutted?
Yes by establishing that the parties had sole legal ownership could exist with joint beneficial ownership
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Who is the onus of proof on?
The person seeking to show that the beneficial interest is different
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Lord Neuberger in Stack v Dowden
If there is evidence of financial contribution, surely you should start with a presumed resulting trust.
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What kind of factors does Hale believe the courts should consider when determine if the equitable interests should be different?
Children, family home?, organisation of the parties' finances, financial contribution
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Hale distinguished between...
Domestic and commercial context
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Which context does S v D deal with?
Domestic context
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But what is the first and main factor that the courts consider?
Financial contribution
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Why did Lord Neuberger not agree with the decision in Stack v Dowden? (3)
Believes the resulting trust approach is better. Considering non-financial factors will lead to subjectivity, uncertainty and will be expensive. An intention can be express, implied but not imputed
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Post-Stack. What is the issue with common intention? Case
The parties' interests can change over time. Jones v Kernott [2011]
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Case- Adopted a broader approach focussing on fairness rather than intention. Issue?
Oxley v Hiscock [2004]. Shouldn't it be able unconscionability rather than unfairness?
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Which type of trust should be applied in a commercial context?
PRT. Personal factors are irrelevant in a commercial situation
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Commercial context case
Laskar v Laskar. Mother and daughter joint tenancy. Property was primarily an investment not a home. Presumed resulting trust analysis was applied.
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Other cards in this set

Card 2

Front

1 Property Adjustment Order 2 s. 24 Matrimonial Clauses Act 1973 3 s.72 and schedule 5 Civil Partnership Act 2002

Back

3 tools used?

Card 3

Front

They don't have the same level of statutory protection as married couples so if your name isn't on the title deeds, you will have to try and acquire an equitable interest.

Back

Preview of the back of card 3

Card 4

Front

s. 53(1) LPA 1925

Back

Preview of the back of card 4

Card 5

Front

An implied trust

Back

Preview of the back of card 5
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